No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the Company nor any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly: (i) Solicit, initiate, or knowingly encourage, or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal; (ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries; (iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or (iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 2 contracts
Sources: Merger Agreement (Demandware Inc), Agreement and Plan of Merger (Salesforce Com Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the each of Private Company, Public Company nor any of its and their respective Subsidiaries shallshall not, and the each of Private Company and Public Company shall use commercially reasonable efforts to cause its directors, officers, members, employees, agents, attorneys, consultants, contractors, accountants, financial advisors and its Subsidiaries’ directors and officers other authorized representatives (“Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, seek or initiate or knowingly encouragetake any action to facilitate or encourage any offers, or induce any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make any non-public information or has made an Acquisition Proposal or afford any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Person other than Public Company or any of its SubsidiariesPrivate Company, or afford as applicable, access to the business, properties, assetssuch party’s property, books or records of the Company (except pursuant to a request by a Governmental Entity) in connection with any Acquisition Proposal; provided, however, that nothing in this Section 6.1 shall prevent a party or any of its SubsidiariesRepresentatives from referring a Person to this Section 6.1;
(iii) enter into take any letter action to make the provisions of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a any takeover statute inapplicable to any transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))Proposal; or
(iv) terminate, amend, waive or fail publicly propose to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person the foregoing described in clauses (other than the Parenti) through (iii). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the Specified Time, subject to compliance with Section 6.1(c), Public Company may (A) furnish non-public information with respect to the Company itself and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or pursuant to a confidentiality agreement not materially less restrictive with respect to the confidentiality obligations of the Qualified Person than the Confidentiality Agreement, (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, agreement with respect to any capital stock of such party with any Qualified Person. It is understood and agreed that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none violation of the restrictions in this Section 6.1 (or action that, if taken by Public Company or Private Company, as applicable, would constitute such a violation) by any Representative of its Subsidiaries Public Company or Private Company shall have breached or violated in any material respect the terms be deemed to be a breach of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the by Public Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Private Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)as applicable.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dare Bioscience, Inc.), Stock Purchase Agreement (Cerulean Pharma Inc.)
No Solicitation or Negotiation. Except as set forth in (a) Until the earlier of the termination of this Section 6.1, until Agreement pursuant to its terms or the Specified Effective Time, neither the Company nor any Subsidiary nor any representative of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives toSubsidiary shall, directly or indirectly:
, take any action to (i) Solicit, initiate, or knowingly encourage, solicit or induce any inquiries or initiate the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication inquiries with respect thereto, (ii) enter into any agreement for or relating to a Third-Party Transaction, or (iii) participate in any way in discussions or negotiations with, or furnish any non-public information to, any Person in connection with any Acquisition Proposal. Notwithstanding any other provision of interest that would this Section 6.6(a), the Company may, prior to the Stockholder Approval, in response to an unsolicited bona fide written offer or proposal made by a third party which is reasonably be expected likely to lead to an Acquisition a Superior Proposal, provide non-public information to or furnish have discussions or negotiations with such third party, if and only to the extent that the Board of Directors has determined in good faith, after receiving the advice of its outside counsel, that such action is necessary in order for the Board of Directors to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company will immediately communicate to the Buyer the receipt of any Person third party solicitation, proposal or bona fide inquiry that is seeking to make or has made an Acquisition Proposal the Company, any Subsidiary or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records representative of the Company or any Subsidiary may receive in respect of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person)transaction, or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to request for such information, including in each case a copy thereof and all other particulars thereof, and keep the foregoing clauses (A)Buyer fully apprised of all developments therein on a current basis, (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined and consider in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to counterproposals which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information Buyer, in its sole discretion, elects to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)make.
Appears in 2 contracts
Sources: Merger Agreement (Avant Corp), Merger Agreement (Oracle Corp /De/)
No Solicitation or Negotiation. Except Sellers and each Majority Shareholder, severally and not jointly, agree as set forth follows:
(a) Unless and until such time as this Agreement is otherwise terminated in this accordance with Section 6.17.1, until the Specified Time, neither the Company nor any of its Subsidiaries each Seller and each Majority Shareholder shall, and the Company shall cause its Representatives, to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal and its Subsidiaries’ directors request the return or destruction of all confidential information regarding Sellers provided to any such persons on or prior to the Signing Date pursuant to the terms of any confidentiality agreements or otherwise. Each Seller and officers not toeach Majority Shareholder shall not, and shall cause its respective Representatives, not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
, (i) Solicitsolicit, initiateparticipate in, initiate or encourage (including by way of furnishing information), or knowingly take any other action designed or reasonably likely to facilitate or encourage, or induce any inquiries or the making, submission or announcement making of any proposal, offer or indication of interest proposal that constitutes, or would may reasonably be expected to lead to, any Acquisition Proposal;
Proposal or (ii) enter intoparticipate in any discussions or negotiations (including by way of furnishing information) regarding any Acquisition Proposal; provided, continue however, that if, at any time before the date on which the definitive Information Statement is filed with the SEC (or, if earlier, mailed to the Company’s shareholders), Company’s Board of Directors determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or otherwise participate is reasonably likely to be, necessary in order to comply with its fiduciary duties under Law and that such Acquisition Proposal is reasonably likely to lead to a superior proposal for the common shareholders of Company as compared to the transactions contemplated by this Agreement, and if done for the sole purpose of increasing sums available for distribution to Common stockholders of Interpharm Holdings, Inc., then, in such case, Company may, in response to an Acquisition Proposal not solicited after April 11, 2008 and which is submitted in writing by such Person to the Board of Directors of Company after April 11, 2008 and subject to compliance with this Section 5.6 (and provided thatCompany has complied in all respects with its obligations under this Section 5.6) (x) furnish information with respect to Company and its Subsidiaries (other than the terms of this Agreement, or engage in that certain letter of intent dated April 11, 2008 between Company and Amneal Pharmaceuticals, LLC, or any discussions or negotiations regarding any of the foregoing) to the Person making such Acquisition Proposal (or its designated representatives) pursuant to a confidentiality and standstill agreement, provided that any indication such information has been or contemporaneously is provided to representatives of interest that would reasonably be expected to lead to an Buyer, and (y) participate in discussions or negotiations regarding such Acquisition Proposal.
(b) Except as set forth in Section 5.6(c), the Board of Directors of Company shall not (i) withdraw or modify, or furnish propose to any Person that is seeking to make withdraw or has made an Acquisition Proposal modify, its approval and recommendation of this Agreement and the transactions contemplated hereby (the “Recommendation”), (ii) approve or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company recommend or any of its Subsidiariestake no position with respect to, or afford access propose to the businessapprove or recommend or take no position with respect to, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or (iii) cause Company to enter into any indication of interest that would reasonably be expected agreement related to lead to an any Acquisition Proposal (other than a confidentiality and standstill agreement referred with respect to in an Acquisition Proposal as contemplated by Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a5.6(a)); or.
(ivc) terminateIf, amendbefore the date on which the definitive Information Statement is filed with the SEC (or, waive or fail if earlier, mailed to enforce any rights Company’s shareholders), Company’s Board of Directors determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is necessary in order to comply with its fiduciary duties under any “standstill” or other similar agreement between Law and that such Acquisition Proposal is reasonably likely to lead to a superior proposal for the common shareholders of Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything as compare to the contrary set forth in transactions contemplated by this Agreement, and if done for the sole purpose of increasing sums available for distribution to common stockholders of Interpharm Holdings, Inc., and provided that Company may (A) furnish information has complied in all respects with its obligations under this Section 5.6 and has negotiated in good faith with Buyer with respect to any amendment or modification to this Agreement proposed by Buyer, then, in such case Company’s Board of Directors may (i) withdraw or modify its Recommendation or (ii) subject to the provisions of Section 7.2(b)(iii) hereof, cause Company to terminate this Agreement; but in either case (x) only at a time that is after the fifth business day following the receipt by Buyer of written notice advising Buyer that Company has received a definitive Acquisition Proposal and its Subsidiaries containing the information about such Acquisition Proposal specified by Section 5.6(d) and (y) only if simultaneously with taking such action it also executes a definitive written agreement to implement such Acquisition Proposal. For purposes of this Section 5.6(c), “50%” shall be substituted for “20%” in the definition of the term “Acquisition Proposal.”
(d) Company shall immediately (but in no event later than one Business Day after receipt thereof) advise Buyer orally and in writing (by facsimile and email) of any Qualified Person (request for information or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the Representatives identity of the Person making such Qualified Person), request or (B) participate or engage Acquisition Proposal. Company will immediately inform Buyer of any material developments in any discussions or negotiations with respect to, and any material change in the terms (including solicitation amendments or proposed amendments) of, any such request or Acquisition Proposal, with the intent and desire of revised enabling Buyer to make a matching offer so that the transactions contemplated hereby may be effected, and if such matching offer is so made by Buyer, Company shall accept Buyer’s matching offer and reject such other Acquisition Proposals) Proposal. Company will promptly provide Buyer with any Qualified Person (and the Representatives of such Qualified Person) regarding agreements entered into by Company with respect to any such request or Acquisition Proposal Proposal.
(e) Nothing contained in this Section 5.6 shall prohibit Company from taking and disclosing to its shareholders a position contemplated by Rule 14e-2 or (C) amendRule 14d-9 promulgated under the Exchange Act or from making any disclosure to Company’s shareholders if, or grant a waiver or release underin the good faith judgment of its Board of Directors, any standstill or similar agreementafter consultation with outside counsel, failure so to disclose would be inconsistent with Law; provided, however, that in the case neither Company nor its Board of any action taken pursuant to the foregoing clauses (ADirectors shall, except as specifically permitted by Section 5.6(c), (B) withdraw or (C)modify, (1) none of the Company or any of propose to withdraw or modify, its Subsidiaries shall have breached Recommendation or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Personapprove or recommend, (2) prior or propose to taking any of the actions set forth in clause (A) approve or (B) with respect to a Qualified Personrecommend, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)an Acquisition Proposal.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Aisling Capital II LP), Asset Purchase Agreement (Interpharm Holdings Inc)
No Solicitation or Negotiation. Except From the date of this Agreement until the Effective Time, except as set forth in this Section 6.15.1, until none of the Specified TimeAcquired Corporations shall, neither the Company nor shall any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not them authorize or knowingly permit any of its their directors, officers, employees, investment bankers, attorneys, accountants or other Representatives advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to, directly or indirectly:
(i) Solicitsolicit, initiate, or knowingly encourageor intentionally encourage or facilitate, any inquiries, offers or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest proposals that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;, including, without limitation, amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Stock; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make any non-public information with respect to, assist or has made an Acquisition Proposal participate in any effort or attempt by any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its SubsidiariesPerson with respect to, or afford access to the businessotherwise knowingly or intentionally cooperate in any way with, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none providing notice of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions restrictions set forth in clause (A) or (B) with respect this Section 5.1 to a Qualified Personthird party in response to any such inquiry, request or Acquisition Proposal shall not, in and of itself, be deemed a breach of this Section). Notwithstanding the foregoing, prior to the time that the Required Stockholder Vote has been obtained (x) the “Specified Time”), the Company Board shall have determined in good faith (after consultation with outside legal counsel) that may, to the extent the failure to take such action would be inconsistent with its the fiduciary obligations under applicable lawof the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, in response to a bona fide written Acquisition Proposal made or received after the date of this Agreement that the Company Board determines in good faith after consultation with outside counsel and its financial advisor is reasonably likely to lead to a Superior Proposal, in each case that did not result from a breach by the Company of this Section, and subject to compliance with Section 5.1(c), (x) furnish non-public information with respect to any of the Acquired Corporations to the Person making such Acquisition Proposal and its Representatives, and (y) participate in discussions or negotiations (including the negotiation of documentation) with such Person and its Representatives regarding such Acquisition Proposal, if, in the case of either clause (x) or (y), prior to taking such action the Company shall have entered enters into a confidentiality agreement not less restrictive of the terms of which are no less favorable with respect to the Company other party than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 2 contracts
Sources: Merger Agreement (On Semiconductor Corp), Merger Agreement (Catalyst Semiconductor Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the Company shall not, nor shall it authorize or permit or encourage any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its or their directors, officers, employees, investment bankers, attorneys, accountants or other Representatives toadvisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to directly or indirectly:
(i) Solicitsolicit, initiate, induce or knowingly encourage, or induce encourage any inquiries or solicitations for the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter into, encourage, permit, indicate receptivity to, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, furnish to any person any information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal. Notwithstanding the foregoing, prior to the adoption of this Agreement at the Company Stockholders Meeting (the “Specified Time”), the Company may, if such actions are required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, in response to a Superior Proposal or any indication a bona fide, unsolicited written Acquisition Proposal made or received after the date of interest this Agreement that would the Company Board determines in good faith, after consultation with outside counsel and a nationally recognized independent financial advisor, could reasonably be expected to lead to an Acquisition a Superior Proposal, or furnish to any Person in each case that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to did not result from a breach by the Company or any of its Subsidiariesthis Section 6.1, or afford access and subject to the businesscompliance with Section 6.1(c), properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (Ax) furnish information with respect to the Company to the person making such Superior Proposal or Acquisition Proposal and its Subsidiaries Representatives pursuant to any Qualified Person a confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (and the Representatives of such Qualified Person), or (By) participate or engage in discussions or negotiations (including solicitation of a revised Superior Proposal or Acquisition ProposalsProposal) with any Qualified Person (such person and the its Representatives of such Qualified Person) regarding any such Acquisition Superior Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Genaissance Pharmaceuticals Inc), Merger Agreement (Genaissance Pharmaceuticals Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, The Company agrees that neither the Company it nor any of its Subsidiaries nor any of its or its Subsidiaries’ officers and directors shall, and the Company that it shall instruct and cause its and its Subsidiaries’ directors directors, officers, employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitinitiate, initiatesolicit, or knowingly encourage, facilitate or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal (as defined below) (including by amending, or granting any Acquisition Proposalwaiver under, the Rights Agreement not contemplated by Section 6.14);
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;Proposal; or
(iii) enter into otherwise knowingly facilitate any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement effort or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected attempt to lead to make an Acquisition Proposal (other than a confidentiality agreement referred Proposal. Notwithstanding anything in this Agreement to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminatecontrary, amendprior to, waive or fail to enforce any rights under any “standstill” or other similar agreement between but not after, the receipt of the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this AgreementRequisite Vote, the Company may (A) furnish provide information with respect in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the board of directors of the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to such Person than those contained in the Confidentiality Agreement, dated June 25, 2009, between the Company and its Subsidiaries to any Qualified Person Parent (and the Representatives of “Confidentiality Agreement”); provided that such Qualified Person), or agreement need not contain a “standstill” provision; (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (who has made such an unsolicited bona fide written Acquisition Proposal; and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amendafter having complied with the terms of this Section 6.2, approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Acquisition Proposal, however, if and only to the extent that in the case of (x) prior to taking any action taken pursuant referred to the foregoing clauses in clause (A), (B) or (C)) above, (1) none the Board of Directors of the Company or any of determines in good faith after consultation with its Subsidiaries shall have breached or violated in any material respect outside legal counsel and financial advisor that failure to take such action would be inconsistent with the terms of this Section 6.1 in connection with such Qualified Persondirectors’ fiduciary duties under applicable Law, (2y) prior in each case referred to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personabove, (x) the Board of Directors of the Company Board shall have has determined in good faith (based on the information then available and after consultation with its financial advisor and outside legal counsel) counsel that the failure such Acquisition Proposal constitutes, or is reasonably likely to take such action would be inconsistent with its fiduciary obligations under applicable lawresult in, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) Superior Proposal, and (z) in the case referred to in clause (C) above, the Board of Directors of the Company shall have given has determined in good faith based on the Parent written notice of the Company’s determination information then available and after consultation with its outside legal counsel and financial advisor that such Person is Acquisition Proposal constitutes a Qualified Person and Superior Proposal. The Company shall promptly disclose (3and, if applicable, provide copies of) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such not previously provided) any non-public information has not been previously furnished or made available by the Company provided to any third party pursuant to clause (A) above to the Parent)fullest extent permitted by Law.
Appears in 2 contracts
Sources: Merger Agreement (Verifone Systems, Inc.), Merger Agreement (Hypercom Corp)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any officer or director of it or any of its Subsidiaries shall, and the Company that it shall use its best efforts to instruct and cause its and its Subsidiaries’ directors employees, financial advisors, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, financial advisors attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (as defined below); or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;Proposal; or
(iii) enter into otherwise knowingly facilitate any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement effort or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected attempt to lead to make an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into Proposal. Notwithstanding anything in the circumstances referred foregoing to in Section 6.1(a)); or
(iv) terminatethe contrary, amendprior to the time that, waive or fail to enforce any rights under any “standstill” or other similar agreement between but not after, the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this AgreementRequisite Vote is obtained, the Company may (A) furnish provide information with respect in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal providing for the acquisition of more than 50% of the total voting power of the Company’s outstanding equity securities if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not more favorable to such other Person than those contained in the Confidentiality Agreement (as defined in Section 9.7); and promptly discloses (and, if applicable, provides copies of) any such information to Parent to the Company and its Subsidiaries extent not previously provided to any Qualified Person (and the Representatives of such Qualified Person), or Parent; (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such an unsolicited bona fide written Acquisition Proposal of the type described above; or (C) amendafter having complied with Section 6.2(c), approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Acquisition Proposal, howeverif and only to the extent that, that in the case of (x) prior to taking any action taken pursuant to the foregoing clauses described in clause (A), (B) or (C)) above, (1) none the board of directors of the Company or any of determines in good faith (after consultation with its Subsidiaries shall have breached or violated outside legal counsel) that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; (y) in any material respect the terms of this Section 6.1 in connection with each such Qualified Person, (2) prior case referred to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personabove, (x) the board of directors of the Company Board shall have has determined in good faith based on the information then available and (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal (as defined below) or is reasonably likely to result in a Superior Proposal; and (z) in the case referred to in clause (C) above, the board of directors of the Company determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Acquisition Proposal is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Choicepoint Inc), Merger Agreement (Reed Elsevier PLC)
No Solicitation or Negotiation. Except (i) The Company agrees that, except as set forth in permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company that it shall instruct and use its commercially reasonable best efforts to cause its and its Subsidiaries’ directors officers, directors, employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such Persons, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
: (iA) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
; (iiB) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, or provide any non-public information or data to any Person relating to, any Acquisition Proposal Proposal; or (C) otherwise knowingly facilitate any indication of interest that would reasonably be expected effort or attempt to lead to make an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating .
(ii) Notwithstanding anything in the foregoing to the Company or any of its Subsidiariescontrary, or afford access prior to the businesstime, propertiesbut not after, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this AgreementShareholder Approval is obtained, the Company may (A) furnish provide non-public and other information with respect in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms that, if taken as a whole, are not materially less restrictive to the Company other party than those contained in the Confidentiality Agreement and its Subsidiaries promptly discloses (and, if applicable, provides copies of) any such information to any Qualified Person (and Buyer to the Representatives of such Qualified Person)extent not previously provided to Buyer, or (B) engage or otherwise participate or engage in any discussions or negotiations (including solicitation of revised regarding such an unsolicited bona fide written Acquisition Proposals) with any Qualified Person (Proposal, if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A)extent that, (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth action described in clause clauses (A) or (B) with respect to a Qualified Personof this Section 6.2(a)(ii), the Company Board determines in good faith that based on the information then available (x) the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel, such Acquisition Proposal constitutes a Superior Proposal and (y) that the after consultation with its outside legal counsel, tax advisors and other outside advisors it deems relevant, a failure to take such action would be inconsistent with its fiduciary obligations under applicable lawaction, (y) in light of the Company shall have entered into a confidentiality agreement Acquisition Proposal and the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent this Agreement, would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice a breach of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)directors’ fiduciary duties under Applicable Law.
Appears in 2 contracts
Sources: Share Acquisition Agreement (First Trinity Financial CORP), Share Acquisition Agreement (First Trinity Financial CORP)
No Solicitation or Negotiation. Except Subject to any actions which Allergan is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article 9, except as otherwise set forth in this Section 6.15.3, until the Specified TimeAllergan shall not, neither the Company nor any of and it shall cause its Subsidiaries shalland its and their respective directors, officers and employees not to, and the Company it shall use reasonable best efforts to cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives not to, directly or indirectly:
(i) Solicitsolicit, initiate, initiate or take any action to knowingly facilitate or knowingly encourage, or induce encourage (including by way of furnishing information to any inquiries or Person in connection with) the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Allergan Alternative Proposal or any indication of interest indication, proposal or inquiry that would reasonably be expected to lead to an Acquisition Allergan Alternative Proposal;
(ii) enter into or participate in any discussions or negotiations with, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company Allergan or any of its SubsidiariesSubsidiaries to, or afford access to the business, properties, assets, books or records of the Company Allergan or any of its Subsidiaries;
(iii) enter into Subsidiaries to, otherwise cooperate in any letter of intentway with, memorandum of understandingor knowingly assist, agreement in principleparticipate in, acquisition agreementknowingly facilitate or knowingly encourage any effort by, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest Third Party that would reasonably be expected to lead seek to make, or has made, an Allergan Alternative Proposal (except to notify such Person as to the existence of the provisions of this Section 5.3);
(iii) (A) withdraw or qualify, amend or modify in any manner adverse to AbbVie, the Scheme Recommendation or the recommendation contemplated by Section 3.6(c), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Allergan Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Allergan Alternative Proposal or in connection with such action by the close of business on the 10th Business Day after the commencement of such Allergan Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), an “Allergan Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations under applicable Law inapplicable to any Third Party or any Allergan Alternative Proposal; or
(v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other agreement providing for or relating to an Allergan Alternative Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parentan Allergan Alternative Proposal NDA). Notwithstanding Nothing contained herein shall prevent the foregoing or anything Allergan Board from (x) complying with Rule 14e-2(a) under the Exchange Act with regard to the contrary set forth in this Agreementan Allergan Alternative Proposal, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of so long as any action taken pursuant or statement made to the foregoing clauses (A), (Bso comply is consistent with this Section 5.3(a) or (C), (1y) none of making any required disclosure to the Company or any of its Subsidiaries shall have breached or violated in any material respect Allergan Shareholders if the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Allergan Board shall have determined determines in good faith (faith, after consultation with outside legal counsel) , that the failure to take such action would reasonably be expected to be inconsistent with applicable Law; provided that any Allergan Change of Recommendation involving or relating to an Allergan Alternative Proposal may only be made in accordance with the provisions of Section 5.3(b), Section 5.3(c), Section 5.3(d) and Section 5.3(e). For clarity, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute an Allergan Change of Recommendation. Additionally, Allergan shall, and shall cause its fiduciary obligations under applicable lawSubsidiaries and its and their respective directors, (y) officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the Company shall have entered into a confidentiality agreement the terms date of which are no less favorable this Agreement with respect to any Allergan Alternative Proposal or with respect to any indication, proposal or inquiry that could reasonably be expected to lead to an Allergan Alternative Proposal. Allergan will promptly (and in each case within 72 hours from the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision date of this Agreement) request from each Person (and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, ’s Representatives) that has executed a confidentiality agreement during the Company furnishes last eighteen months in connection with its consideration of making an Allergan Alternative Proposal to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning Allergan or any of its Subsidiaries and shall promptly (and in each case within 72 hours from the date of this Agreement) terminate all physical and electronic data access previously granted to the Parent (to the extent each such information has not been previously furnished or made available by the Company to the Parent)Person.
Appears in 2 contracts
Sources: Transaction Agreement (Allergan PLC), Transaction Agreement (AbbVie Inc.)
No Solicitation or Negotiation. Except Each of the Acquired Corporations shall, and shall cause its respective directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to (i) immediately cease any discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal and request, not later than five (5) business days following the date hereof, the prompt return or destruction (followed by a written certification of destruction) of all confidential information previously furnished to such parties or their representatives, and (ii) except as permitted below in this Section 6.1(a), not modify, waive, amend or release any standstill, confidentiality or similar agreements entered into prior to the date hereof or any confidentiality agreement entered into by Acquired Corporation between the date hereof and the Effective Time. From the date of this Agreement until the Effective Time, except as set forth in this Section 6.1, until none of the Specified TimeAcquired Corporations shall, neither the Company nor shall any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not them authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, or knowingly encourageor intentionally encourage or facilitate, any inquiries, offers or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest proposals that constitutesconstitute, or would reasonably be expected to lead to, any Acquisition Proposal;, including, without limitation and except as permitted by Section 6.1(c), amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Stock; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make any non-public information with respect to, assist or has made an Acquisition Proposal participate in any effort or attempt by any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its SubsidiariesPerson with respect to, or afford access to the businessotherwise knowingly or intentionally cooperate in any way with, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none providing notice of the Company or any of its Subsidiaries shall have breached or violated restrictions set forth in any material respect the terms of this Section 6.1 to a third party in connection with response to any such Qualified Personinquiry, (2) request or Acquisition Proposal shall not, in and of itself, be deemed a breach of this Section). Notwithstanding the foregoing, prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified PersonAcceptance Date, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that may, to the extent the failure to take such action would be inconsistent with its the fiduciary obligations duties of the Company Board under applicable lawLegal Requirements, as determined in good faith by the Company Board after consultation with outside counsel, in response to an unsolicited, bona fide written Acquisition Proposal made or received after the date of this Agreement that the Company Board determines in good faith after consultation with outside counsel and its financial advisor, if any, is reasonably likely to lead to a Superior Proposal and that did not result from a breach by the Company of, or actions by its Representatives inconsistent with, this Section, and subject to compliance with Section 6.1(c), (yx) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable furnish non-public information with respect to the Acquired Corporations to the Person making such Acquisition Proposal and its Representatives and (y) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal, if, in the case of either clause (x) or (y), prior to taking such action the Company than enters into an Acceptable Confidentiality Agreement. In addition, prior to the Confidentiality Agreement (which confidentiality agreement Acceptance Date, the Company may, to the extent required by the fiduciary duties of the Company Board under applicable Legal Requirements, as determined in good faith by the Company Board after consultation with outside counsel, waive standstill provisions in effect with a third party whose identity has been disclosed to Parent, in response to an unsolicited request from such third party for such a waiver, provided such party has either made a Superior Proposal or has expressed to the Company an intention to make an Acquisition Proposal that the Company Board determines in good faith after consultation with outside counsel and its financial advisor, if any, is reasonably likely to lead to a Superior Proposal. Promptly following the execution of this Agreement, the Company shall not include instruct its Representatives as to the restrictions set forth in this Section 6.1(a) and direct them to comply with its provisions and shall thereafter use its reasonable best efforts to assure that the Company Representatives comply with such instructions. Notwithstanding the foregoing, it is agreed that any provisions that would prevent or restrict violation of the restrictions set forth in this Section 6.1(a) by any Representative of the Company or any of its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that Subsidiaries, whether or not such Person is a Qualified Person and (3) contemporaneously with furnishing any information purporting to such Person, act on behalf of the Company furnishes such information or otherwise, shall be deemed to the Parent (to the extent such information has not been previously furnished or made available be a breach of this Section 6.1(a) by the Company to the Parent)Company.
Appears in 2 contracts
Sources: Merger Agreement (On Semiconductor Corp), Merger Agreement (California Micro Devices Corp)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, from the date hereof until the Specified Timetermination of this Agreement in accordance with the terms hereof, neither the Company nor any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors directors, officers, employees, investment bankers, attorneys, accountants and officers not toother advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, and shall other advisors and representatives, collectively, “Representatives”) not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
: (i) Solicitsolicit, initiate, initiate or knowingly encourage, facilitate or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
; (ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking any non-public information relating to make or has made an any Acquisition Proposal or in respect of any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company such inquiry; or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by related to any Acquisition Proposal or resulting from any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (such inquiry other than a confidentiality agreement referred to in Section 6.1(a) entered into in agreements required by the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)proviso below. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to receipt of the Company may Stockholder Approval, (x) in response to an unsolicited, bona fide Acquisition Proposal that did not result from a breach of this Section 6.1 and that the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) is, or would be reasonably likely to constitute, a Superior Proposal, and (y) if the Company Board otherwise determines in good faith (after consultation with outside counsel) that failure to do so would reasonably be likely to result in a breach by the Company’s directors of their fiduciary duties to the Company or its stockholders, and subject in each case to compliance with Section 6.1(c), the Company may, at any time prior to obtaining the Company Stockholder Approval (but in no event after obtaining the Company Stockholder Approval), after providing Buyer with not less than 48 hours’ written notice of its intention to take such actions (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person) making an Acquisition Proposal or an inquiry (provided, that such Person has entered into a confidentiality agreement with the Company with confidentiality provisions in favor of the Company that are not materially less favorable to the Company than the Confidentiality Agreement and that expressly permits disclosure of the identity of the bidder and the material terms of such inquiry or Acquisition Proposal), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) Proposals with any Qualified such Person (and the its Representatives of such Qualified Person) regarding any such Acquisition Proposal or inquiry and (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in agreement with such Person or with Buyer. The Company shall provide the case Buyer with a complete and correct copy of any action taken confidentiality agreement entered into pursuant to the foregoing clauses (A), (B) or (C), (1) none this paragraph within 24 hours of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)execution thereof.
Appears in 2 contracts
Sources: Merger Agreement (Witness Systems Inc), Merger Agreement (Verint Systems Inc)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company that it shall use its best efforts to instruct and cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (as defined below); or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;Proposal; or
(iii) enter into otherwise facilitate any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement effort or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected attempt to lead to make an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into Proposal. Notwithstanding anything in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreementcontrary, prior to the time, but not after, the Requisite Company Vote is obtained, the Company may (A) furnish provide information with respect in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal providing for the acquisition of more than 50% of the assets (on a consolidated basis) or total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to the Company other party than those contained in the Confidentiality Agreement (as defined in Section 9.7) and its Subsidiaries promptly discloses (and, if applicable, provides copies of) any such information to any Qualified Person (and Parent to the Representatives of extent not previously provided to such Qualified Person), or party; (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such an unsolicited bona fide written Acquisition Proposal Proposal; or (C) amendafter having complied with Section 6.2(b), approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Acquisition Proposal, howeverif and only to the extent that, that in the case of (x) prior to taking any action taken pursuant to the foregoing clauses described in clause (A), (B) or (C)) above, (1) none the board of directors of the Company or any of determines in good faith after consultation with its Subsidiaries shall have breached or violated outside legal counsel that such action is necessary in any material respect order for such directors to comply with the terms of this Section 6.1 in connection with such Qualified Persondirectors’ fiduciary duties under applicable Law, (2y) prior in each such case referred to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personabove, (x) the board of directors of the Company Board shall have has determined in good faith based on the information then available and after consultation with its financial advisor that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal, and (z) in the case referred to in clause (C) above, the board of directors of the Company determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Acquisition Proposal is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Hanmi Financial Corp), Merger Agreement (Hanmi Financial Corp)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the Company nor any of its Subsidiaries shall, and the Company shall cause its directors, officers and its Subsidiaries’ directors and officers senior management not to, to and shall not authorize or knowingly permit any of use reasonable efforts to cause its other Representatives not to, directly or indirectly:
(i) Solicitsolicit, initiate, initiate or knowingly encourage, facilitate or induce knowingly encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) provide any non-public information concerning the Company or any of its Subsidiaries to any Person or group who has made or would reasonably be expected to make any Acquisition Proposal or for the purpose of encouraging or facilitating any Acquisition Proposal;
(iii) amend or grant a waiver or release under any standstill or similar agreement with respect to any Company Common Stock (other than for Parent or its Affiliate), except under the circumstances permitted under this Section 6.1(a); or
(iv) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 6.1(c), if at any time prior to the Acceptance Time, (i) the Company has received after the date of this Agreement a written Acquisition Proposal that did not result from a material breach of this Section 6.1, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal (the Person making such Acquisition Proposal, a “Qualified Person”) and that the failure to take such action described in clause (A) or clause (B) below would be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable law, then the Company may (A) furnish non-public information with respect to the Company and its Subsidiaries to any such Qualified Person (and the Representatives of such Qualified Person), pursuant to a confidentiality agreement not materially less restrictive with respect to the confidentiality and non-use obligations of the Qualified Person than the Confidentiality Agreement (provided, that the Company shall substantially concurrently provide to Parent, in accordance with the terms of the Confidentiality Agreement, any non-public written information and any other material non-public information concerning the Company and its Subsidiaries that is provided to (or given access to) such Qualified Person and which was not previously provided or made available to Parent), (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any such Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or and (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) agreement with respect to a any Company Common Stock with any Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 2 contracts
Sources: Merger Agreement (Cynosure Inc), Merger Agreement (Hologic Inc)
No Solicitation or Negotiation. Except Parent agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time7.3, neither the Company it nor any of its Subsidiaries directors, officers and employees shall, and the Company that it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives not to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, encourage or induce facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Parent Acquisition Proposal;
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal regarding, or any indication of interest that would reasonably be expected to lead to an to, any Parent Acquisition Proposal, or furnish provide any nonpublic information or data to any Person that is seeking in connection with the foregoing, in each case, except to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records notify such Person of the Company or any existence of its Subsidiaries;the provisions of this Section 7.3; or
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement resolve or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected agree to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person (other than the Parent)foregoing. Notwithstanding the foregoing or anything to the contrary set forth in the foregoing provisions of this AgreementSection 7.3(a), prior to the time, but not after, the Company may Parent Stockholder Approval is obtained, Parent and its Representatives may, after complying with Section 7.3(e), (A) furnish provide information with respect in response to the Company and its Subsidiaries to any Qualified a request therefor by a Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such who has made an unsolicited bona fide written Parent Acquisition Proposal or (C) amend, or grant after the date of this Agreement that did not result from a waiver or release under, breach in any standstill or similar agreementmaterial respect of this Section 7.3 if Parent receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to such Person than those contained in the Confidentiality Agreement; provided, however, that in the case of any action taken pursuant such information has previously been made available to the foregoing clauses (A), Company and the Special Committee or is made available to the Company and the Special Committee prior to or promptly after the time such information is made available to such Person; and (B) engage or (C)otherwise participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Parent Acquisition Proposal, if and only to the extent that, (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2I) prior to taking any of the actions set forth action described in clause (A) or (B) with respect to a Qualified Persondirectly above, (x) the Company Parent Board shall have determined determines in good faith (after consultation with its outside legal counsel) counsel that the failure to take such action would be inconsistent with its the directors’ fiduciary obligations duties under applicable lawLaw and (II) in each such case referred to in clause (A) or (B) directly above, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which Board has determined in good faith based on the Parent would be entitled under any provision of this Agreement) information then available and (z) the Company shall have given the Parent written notice of the Company’s determination after consultation with its outside legal counsel and financial advisor that such Person is Parent Acquisition Proposal either constitutes a Qualified Person and (3) contemporaneously with furnishing any information Parent Superior Proposal or could reasonably be expected to such Person, the Company furnishes such information to the result in a Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (BridgeBio Pharma, Inc.), Merger Agreement (BridgeBio Pharma, Inc.)
No Solicitation or Negotiation. Except as set forth expressly permitted in this Section 6.17.1, until the Specified Time, neither the Company shall not, nor shall it authorize or permit any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its or their directors, officers, employees, investment bankers, attorneys, accountants or other Representatives toadvisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to directly or indirectly:
(i) Solicitsolicit, initiate, encourage or knowingly encourage, or induce take any other action to facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal, including without limitation, amending or granting any waiver or release under any standstill or similar agreement with respect to any Shares;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company with respect to, assist or participate in any of its Subsidiarieseffort or attempt by any Person with respect to, or afford access to the businessotherwise cooperate in any way with, properties, assets, books or records of the Company or any of its Subsidiaries;Acquisition Proposal; or
(iii) enter into make or authorize any letter statement, recommendation or solicitation in support of intentany Acquisition Proposal. The Company shall use its reasonable best efforts to take the necessary steps promptly to inform the Persons described in the first sentence of this Section 7.1(a) of the obligations undertaken under this Section. Notwithstanding the foregoing, memorandum of understanding, agreement nothing contained in principle, acquisition agreement, merger agreement this Agreement shall prevent the Company or the Company Board from (i) taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar agreement providing for communication to shareholders in connection with the consummation making or amendment of a transaction contemplated by tender offer or exchange offer) or from making any Acquisition Proposal or any indication of interest that would reasonably be expected legally required disclosure to lead shareholders with regard to an Acquisition Proposal (other than provided that neither the Company nor its Company Board may recommend any Acquisition Proposal unless permitted by Section 7.1(b) below and the Company may not fail to make or withdraw, modify or change in a confidentiality agreement referred manner adverse to the Buyer all or any portion of the Company Board Recommendation unless permitted by Section 7.5 (in which case the Buyer shall have the right to terminate this Agreement as set forth in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a7.1(b)(ii)); or
(iv) terminate, amendand provided further that, waive or fail notwithstanding anything herein to enforce any rights under the contrary, any “standstillstop-look-and-listen” or other similar agreement between communication by the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything Company Board to the contrary set forth shareholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act shall not be considered a failure to make, or a withdrawal, modification or change in any manner adverse to the Buyer of, all or a portion of the Company Board Recommendation) or (ii) prior to the adoption of this Agreement by the Company’s shareholders in accordance with this Agreement, the Company may (A) furnish providing access to its properties, books and records and providing information with respect or data in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company and its Subsidiaries to any Qualified Board receives from the Person (and the Representatives of so requesting such Qualified Person)information an executed confidentiality agreement, or (B) participate engaging in any negotiations or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (who has made an unsolicited bona fide written Acquisition Proposal, if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) extent that prior to taking any of the actions set forth in clause clauses (A) or (B) with respect to a Qualified Personof clause (ii), (x) the Company Board shall have determined in good faith (faith, after consultation with its outside legal counsel) counsel and financial advisors, that the failure to take such action would be inconsistent is necessary in order for the Company Board to comply with its fiduciary obligations duties under applicable lawLaw and that such Acquisition Proposal will, or would reasonably be expected to, result in, a Superior Proposal, and (y) the Company shall have entered into a confidentiality agreement informed the terms of which are Buyer promptly following (and in no less favorable with respect to the Company event later than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z24 hours after) the Company shall have given the Parent written notice taking by it of the Company’s determination that any such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)action.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sinoenergy CORP), Merger Agreement (Sinoenergy CORP)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of its or their officers, directors, and representatives of it or its Subsidiaries shall, and the Company that it shall use its best efforts to instruct and cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (as defined below); or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;Proposal; or
(iii) enter into otherwise facilitate any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement effort or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected attempt to lead to make an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into Proposal. Notwithstanding anything in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth contrary, prior to the time, but not after, Merger Sub acquires Shares in this Agreementthe Offer, the Company may (A) furnish provide information with respect in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal providing for the acquisition of more than fifty percent (50%) of the assets (on a consolidated basis) or total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to the Company other party than those contained in the Confidentiality Agreement (as defined in Section 9.7) and its Subsidiaries an executed standstill agreement, and promptly discloses (and, if applicable, provides copies of) any such information to any Qualified Person (and Parent to the Representatives of such Qualified Person), or extent not previously provided to Parent; (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such an unsolicited bona fide written Acquisition Proposal Proposal; or (C) amendafter having complied with Section 6.2(c), approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Acquisition Proposal, howeverif and only to the extent that, that in the case of (x) prior to taking any action taken pursuant to the foregoing clauses described in clause (A), (B) or (C)) above, (1) none of the Company or any of Board determines in good faith after consultation with its Subsidiaries shall have breached or violated outside legal counsel that such action is necessary in any material respect order for such directors to comply with the terms of this Section 6.1 directors’ fiduciary duties under applicable Law, and (y) in connection with each such Qualified Person, (2) prior case referred to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personabove, (x) the Company Board shall have has determined in good faith based on the information then available and after consultation with its outside legal counsel and with its financial advisor that such Acquisition Proposal constitutes a Superior Proposal (as defined below), and (z) in the case referred to in clause (C) above, the Company Board determines in good faith (after consultation with its outside legal counselcounsel and with its financial advisor) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Acquisition Proposal is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Viking Systems Inc), Agreement and Plan of Merger (Conmed Corp)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company that it shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (as defined below); or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;Proposal; or
(iii) enter into otherwise knowingly facilitate any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement effort or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected attempt to lead to make an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into Proposal. Notwithstanding anything in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreementcontrary, prior to the time, but not after, the Requisite Company Vote is obtained, the Company may (A) furnish provide information with respect in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive, taken as a whole, to the Company other party than those contained in the Confidentiality Agreement (as defined in Section 9.7) (not including paragraph 8 thereof) and its Subsidiaries promptly discloses (and, if applicable, provides copies of) any such information to any Qualified Person (and Parent to the Representatives of such Qualified Person), or extent not previously provided to Parent; (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such an unsolicited bona fide written Acquisition Proposal Proposal; or (C) amendafter having complied with Section 6.2(c), approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Acquisition Proposal, howeverif and only to the extent that, that in the case of (x) prior to taking any action taken pursuant to the foregoing clauses described in clause (A), (B) or (C)) above, (1) none the board of directors of the Company or any of its Subsidiaries shall have breached or violated determines in any material respect good faith after consultation with outside legal counsel that failure to take such action would be inconsistent with the terms of this Section 6.1 directors’ fiduciary duties under applicable Law, and (y) in connection with each such Qualified Person, (2) prior case referred to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personabove, (x) the board of directors of the Company Board shall have has determined in good faith based on the information then available and after consultation with its financial advisor that such Acquisition Proposal either constitutes a Superior Proposal (as defined below) or is reasonably likely to result in a Superior Proposal, and (z) in the case referred to in clause (C) above, the board of directors of the Company determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Acquisition Proposal is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (Bowne & Co Inc)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time7.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company that it shall instruct and shall use its best efforts to cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors, agents or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors, agents, or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, knowingly facilitate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal (as defined below); or
(ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide or make available any non-public information or data to any Person relating to the Company or any of its Subsidiaries relating to, or that would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage except to notify such Person of the existence of this Section 7.2. Notwithstanding anything in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating the foregoing to the Company or any of its Subsidiariescontrary, or afford access prior to the business, properties, assets, books or records of date on which the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this AgreementRequisite Vote is obtained, the Company may (A) furnish provide information with respect in response to a request therefor by a Person who has made a written Acquisition Proposal providing for the Company and its Subsidiaries to any Qualified Person acquisition of more than 50% of the assets (and the Representatives of such Qualified Personon a consolidated basis), or total voting power of the equity securities of the Company if, and only if, (i) the Company receives from the Person so requesting such information, an executed confidentiality agreement on terms not less restrictive to the other party in any material respect than those contained in the Confidentiality Agreement (as defined in Section 10.7) (it being understood that such confidentiality agreement need not contain any “standstill” provision or otherwise prohibit the making, or amendment, of an Acquisition Proposal, but it may not restrict the Company from complying with this Section 7.2(a)) and (ii) the Company promptly (and in any event within thirty-six (36) hours of providing such information) discloses (and, if applicable, provides copies of) any such information to Parent to the extent not previously provided to Parent; (B) participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person who has made such an Acquisition Proposal, subject to the conditions contained in clause (and the Representatives of such Qualified PersonA)(i)-(ii) regarding any such Acquisition Proposal above; or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in ascertain facts from the case party making such Acquisition Proposal for the purpose of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of informing the Company or any of its Subsidiaries shall have breached or violated Board about the Acquisition Proposal and the party making such Acquisition Proposal, in any material respect the terms of this Section 6.1 in connection with each such Qualified Person, (2) prior case referred to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personabove, (x) if and only if the Company Board shall have determined determines in good faith after consultation with its outside legal counsel and financial advisor that such Acquisition Proposal either constitutes a Superior Proposal (as defined below) or could reasonably be expected to lead to a Superior Proposal and the Company Board determines in good faith, after consultation with outside legal counsel) , that the failure to take such action would be inconsistent with its the fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice duties of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)directors under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Optimer Pharmaceuticals Inc), Merger Agreement (Cubist Pharmaceuticals Inc)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.15.6, until after the Specified Timedate hereof, neither the Company it nor any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit subsidiaries nor any of its other Representatives toor their respective officers, directors or employees will, and it will direct and use all reasonable best efforts to cause its agents, including any investment banker, attorney or accountant retained by it or by any of its subsidiaries (collectively, its “Representatives”) not to (1) initiate, solicit or encourage, directly or indirectly:
, any inquiries, proposals or offers (iwhether firm or hypothetical) Solicitwith respect to any Acquisition Proposal or the making or implementation of any Acquisition Proposal, initiate(2) engage in any negotiations concerning, or knowingly encourageprovide any confidential information or data to, or induce have any inquiries discussions with, any Person relating to an Acquisition Proposal, (3) otherwise facilitate any effort or the makingattempt to make or implement an Acquisition Proposal, submission (4) approve or announcement of any proposal, offer or indication of interest that constitutesrecommend, or would reasonably be expected propose to lead toapprove or recommend, any Acquisition Proposal, (5) approve or recommend, or propose to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, memorandum of understanding, merger agreement, asset or share purchase or share exchange agreement, option agreement or other similar agreement related to any Acquisition Proposal, (6) enter into any agreement or agreement in principle requiring, directly or indirectly, the Company to abandon, terminate or fail to consummate the transactions contemplated by this Plan or breach its obligations hereunder or (7) propose or agree to do any of the foregoing. Notwithstanding anything in the foregoing to the contrary, prior to, but not after, the time when the approval described in Section 6.1(a) is obtained, the Company may:
(A) provide information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal, if the Company has received from such Person an executed confidentiality agreement on terms at least as favorable to the Company as those contained in the Confidentiality Agreement, and promptly discloses and, if applicable, provides copies of, any such information to Parent, to the extent not previously provided to Parent;
(iiB) enter into, continue engage or otherwise participate or engage in any discussions or negotiations regarding with any Person who has made such unsolicited bona fide written Acquisition Proposal; and
(C) after having complied with this Section 5.6, recommend or otherwise declare advisable or propose to recommend or declare advisable (publicly or otherwise) such Acquisition Proposal or any indication withdraw or modify in a manner adverse to Parent, or propose to withdraw or so modify (publicly or otherwise), its recommendation in favor of interest that would reasonably be expected to lead this Plan and the transactions contemplated hereby, or otherwise effect a Change in Recommendation with respect to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating but only if and to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
extent that (iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2x) prior to taking any of the actions set forth action described in clause (A) or (B) above or this clause (C), the board of directors of the Company determines, in good faith, after consultation with respect its outside legal advisors, that such action is required for the board of directors of the Company to a Qualified Personcomply with its fiduciary duties, (xy) in each such case referred to in clause (A) or (B) above, the board of directors of the Company determines, in good faith, after consultation with its financial advisors and outside legal advisors, that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal, and (z) in the case referred to in clause (C) above, (i) the board of directors of the Company determines, in good faith, after consultation with its financial advisors and outside legal advisors, that such Acquisition Proposal is a Superior Proposal after giving effect to all of the adjustments which may be offered by Parent pursuant to clause (iii) below, (ii) the Company Board has notified Parent in writing, at least five (5) business days in advance, that the Company intends to recommend or otherwise declare advisable such Superior Proposal or otherwise effect a Change in Recommendation, which notice shall have (a) state expressly that the Company has received an Acquisition Proposal which the board of directors of the Company has determined is a Superior Proposal and that the Company intends to effect a Change in Recommendation and the manner in which it intends to do so and (b) include the identity of the person making such Acquisition Proposal and a copy (if in writing) and summary of material terms of such Acquisition Proposal, and (iii) during such five (5) business day period, and in any event, prior to effecting such Change in Recommendation, the Company has negotiated, and has caused its financial and legal advisors to negotiate, with Parent in good faith (after consultation with outside legal counselto the extent Parent desires to negotiate) to make adjustments to the terms and conditions of the transactions contemplated by this Plan proposed by Parent so that such Acquisition Proposal ceases to constitute a Superior Proposal. In the failure event of any material revisions to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable an Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to again comply with the requirements of this clause (z) with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent such new written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)notice.
Appears in 2 contracts
Sources: Merger Agreement (People's United Financial, Inc.), Merger Agreement (Smithtown Bancorp Inc)
No Solicitation or Negotiation. Except as set forth expressly permitted in this Section 6.17.1, until the Specified Time, neither the Company shall not, nor shall it authorize or permit any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its or their directors, officers, employees, investment bankers, attorneys, accountants or other Representatives toadvisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to directly or indirectly:
(i) Solicitsolicit, initiate, encourage or knowingly encourage, or induce take any other action to facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal, including without limitation, amending or granting any waiver or release under any standstill or similar agreement with respect to any Shares;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company with respect to, assist or participate in any of its Subsidiarieseffort or attempt by any Person with respect to, or afford access to the businessotherwise cooperate in any way with, properties, assets, books or records of the Company or any of its Subsidiaries;Acquisition Proposal; or
(iii) enter into make or authorize any letter statement, recommendation or solicitation in support of intentany Acquisition Proposal. The Company shall use its reasonable best efforts to take the necessary steps promptly to inform the Persons described in the first sentence of this Section 7.1(a) of the obligations undertaken under this Section. Table of Contents Notwithstanding the foregoing, memorandum of understanding, agreement nothing contained in principle, acquisition agreement, merger agreement this Agreement shall prevent the Company or the Company Board from (i) taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar agreement providing for communication to shareholders in connection with the consummation making or amendment of a transaction contemplated by tender offer or exchange offer) or from making any Acquisition Proposal or any indication of interest that would reasonably be expected legally required disclosure to lead shareholders with regard to an Acquisition Proposal (other than provided that neither the Company nor its Company Board may recommend any Acquisition Proposal unless permitted by Section 7.1(b) below and the Company may not fail to make or withdraw, modify or change in a manner adverse to the Buyer all or any portion of the Company Board Recommendation unless permitted by Section 7.5 (in which case the Buyer shall have the right to terminate this Agreement as set forth in Section 7.1(b)(ii)), and provided further that, notwithstanding anything herein to the contrary, any “stop-look-and-listen” communication by the Company or the Company Board to the shareholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act shall not be considered a failure to make, or a withdrawal, modification or change in any manner adverse to the Buyer of, all or a portion of the Company Board Recommendation) or (ii) prior to the adoption of this Agreement by the Company’s shareholders in accordance with this Agreement, (A) providing access to its properties, books and records and providing information or data in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company Board receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement (except for such changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement and it being understood that the Company may enter into a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive without a standstill provision or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect a standstill provision less favorable to the Company and its Subsidiaries to any Qualified Person (and if it waives or similarly modifies the Representatives of such Qualified Personstandstill provision in the Confidentiality Agreement), or (B) participate engaging in any negotiations or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (who has made an unsolicited bona fide written Acquisition Proposal, if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) extent that prior to taking any of the actions set forth in clause clauses (A) or (B) with respect to a Qualified Personof clause (ii), (x) the Company Board shall have determined in good faith (faith, after consultation with its outside legal counsel) counsel and financial advisors, that the failure to take such action would be inconsistent is necessary in order for the Company Board to comply with its fiduciary obligations duties under applicable lawLaw and that such Acquisition Proposal will, or would reasonably be expected to, result in, a Superior Proposal, and (y) the Company shall have entered into a confidentiality agreement informed the terms of which are Buyer promptly following (and in no less favorable with respect to the Company event later than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z24 hours after) the Company shall have given the Parent written notice taking by it of the Company’s determination that any such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)action.
Appears in 2 contracts
Sources: Merger Agreement (Mikron Infrared Inc), Merger Agreement (Mikron Infrared Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until during the Specified Time, neither Pre-Closing Period the Company shall not, nor shall the Company authorize or permit any of its Subsidiaries shallto, and nor shall the Company shall cause authorize its directors, officers, employees, investment bankers, attorneys, accountants and its Subsidiaries’ directors other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and officers not torepresentatives, and shall not authorize or knowingly permit any of its other Representatives collectively, “Representatives”) to, directly or indirectly:
(i) Solicitsolicit, initiate, initiate or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or person any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation purpose of a transaction contemplated by encouraging or facilitating, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)Proposal. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the approval of this Agreement at the Company may Meeting (the “Specified Time”), the Company may, to the extent failure to do so could reasonably constitute a breach of fiduciary obligations of the Company Board under applicable law, as determined in good faith by the Company Board after consultation with outside counsel, (A) in response to a Superior Proposal or a bona fide, unsolicited written Acquisition Proposal made or received after the date of this Agreement that the Company Board determines in good faith after consultation with outside counsel and its financial advisor is reasonably likely to lead to a Superior Proposal, in each case that did not result from a breach by the Company of this Section 6.1, and subject to compliance with Section 6.1(c), (x) furnish information with respect to the Company to the person making such Acquisition Proposal and its Subsidiaries Representatives pursuant to any Qualified Person a customary confidentiality agreement not, in the aggregate, less restrictive of the other party than the Confidentiality Agreement and (and the Representatives of such Qualified Person), or (By) participate or engage in discussions or negotiations (including solicitation of a revised Superior Proposal or Acquisition ProposalsProposal) with any Qualified Person (such person and the its Representatives of such Qualified Person) regarding any such Acquisition Superior Proposal or Acquisition Proposal, and (CB) in response to a Superior Proposal or an inquiry that is reasonably likely to lead to a Superior Proposal, in each case that did not result from a breach by the Company of this Section 6.1, and subject to compliance with Section 6.1(c), amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) agreement with respect to a Qualified Person, (x) the any Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Brooktrout Inc), Merger Agreement (Brooktrout Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the each of Otic Pharma, Public Company nor any of its and their respective Subsidiaries shallshall not, and the each of Otic Pharma and Public Company shall use commercially reasonable efforts to cause its and its Subsidiaries’ directors and officers their respective Representatives not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, seek or initiate or knowingly encouragetake any action to facilitate or encourage any offers, or induce any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make person any non-public information or has made an Acquisition Proposal or afford any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the person other than Public Company or any of its SubsidiariesOtic Pharma, or afford as applicable, access to the business, properties, assetssuch party’s property, books or records of the Company (except pursuant to a request by a Governmental Entity) in connection with any Acquisition Proposal; provided, however, that nothing in this Section 6.1 shall prevent a party or any of its SubsidiariesRepresentatives from referring a person to this Section 6.1;
(iii) enter into take any letter action to make the provisions of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction any takeover statute inapplicable to any transactions contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))Proposal; or
(iv) terminate, amend, waive or fail publicly propose to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person the foregoing described in clauses (other than the Parenti) through (iii). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the subject to compliance with Section 6.1(c), Public Company may (A) furnish non-public information with respect to the Public Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or pursuant to a confidentiality agreement not materially less restrictive with respect to the confidentiality obligations of the Qualified Person than the Confidentiality Agreement, (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, agreement with respect to any capital stock of such party with any Qualified Person. It is understood and agreed that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none violation of the restrictions in this Section 6.1 (or action that, if taken by Public Company or would constitute such a violation) by any Representatives of its Subsidiaries Public Company shall have breached or violated in any material respect the terms be deemed to be a breach of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the by Public Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 2 contracts
Sources: Share Purchase Agreement (Tokai Pharmaceuticals Inc), Share Purchase Agreement (Tokai Pharmaceuticals Inc)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time7.2, neither the Company it nor any of its Subsidiaries directors, officers and employees shall, and the Company that it shall instruct and use its reasonable best efforts to cause its investment bankers, attorneys, accountants and its Subsidiaries’ directors other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and officers other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, encourage or induce facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal regarding, or any indication of interest that would reasonably be expected to lead to an to, any Company Acquisition Proposal, or furnish provide any nonpublic information or data to any Person that is seeking in connection with the foregoing, in each case, except to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records notify such Person of the Company or any existence of its Subsidiaries;the provisions of this Section 7.2; or
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement resolve or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected agree to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person (other than the Parent)foregoing. Notwithstanding the foregoing or anything to the contrary set forth in the foregoing provisions of this AgreementSection 7.2(a), prior to the time, but not after, the Company Stockholder Approval is obtained, the Company and its Representatives may (A) furnish provide information with in response to a request therefor by a Person who has made an unsolicited bona fide written Company Acquisition Proposal after the date of this Agreement that did not result from a breach in any material respect to of this Section 7.2 if the Company and its Subsidiaries receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive in the aggregate to any Qualified such Person (and than those contained in the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementConfidentiality Agreement; provided, however, that in such information has previously been made available to Parent and the case of any action taken pursuant Special Committee or is made available to Parent and the foregoing clauses (A), Special Committee prior to or promptly after the time such information is made available to such Person; and (B) engage or otherwise participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Company Acquisition Proposal, if (C)I) the Company shall have provided the Special Committee with a copy of the written Company Acquisition Proposal, (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2II) prior to taking any of the actions set forth action described in clause (A) or (B) with respect to a Qualified Persondirectly above, (x) the Company Board shall have determined (acting with the approval of the Independent Director) determines in good faith (after consultation with its outside legal counsel) counsel that the failure to take such action would be inconsistent with its the directors’ fiduciary obligations duties under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) Law and (zIII) the Company shall have given the Parent written notice of the Company’s determination that in each such Person is a Qualified Person and case referred to in clause (3A) contemporaneously with furnishing any information to such Personor (B) directly above, the Company furnishes Board (acting with the approval of the Independent Director) has determined in good faith based on the information then available and after consultation with its outside legal counsel and financial advisor that such information Company Acquisition Proposal either constitutes a Company Superior Proposal or could reasonably be expected to the Parent (to the extent such information has not been previously furnished or made available by the result in a Company to the Parent)Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (NantKwest, Inc.), Merger Agreement (Cambridge Equities, LP)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the termination of this Agreement in accordance with the terms hereof (the "Specified Time"), neither the Company shall not, nor shall it cause, authorize or permit any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit Affiliates or any of its or their directors, officers, employees, investment bankers, attorneys, accountants or other Representatives toadvisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, "Representatives") of the Company or its Subsidiaries not to directly or indirectly:
(i) Solicitsolicit, initiate, encourage or knowingly encourage, or induce take any other action to facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;, including approving any transaction (or any person becoming an "interested stockholder") under Section 203 of the DGCL; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make person any information with respect to, assist or has made an participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead Proposal. Notwithstanding the foregoing, in response to an Acquisition Proposal that did not result from a breach of this Section 6.1, and subject to compliance with Section 6.1(c), the Company may (x) furnish information with respect to the Company to any information relating person (and the Representatives of such persons) making an Acquisition Proposal that the Company Board determines in good faith (after consultation with outside counsel and its financial advisors) is reasonably likely to result in a Superior Proposal, pursuant to a customary confidentiality agreement not materially less restrictive of the other party than the Confidentiality Agreement (which need not have standstill provisions) and (y) engage in discussions or negotiations with such person and its Representatives regarding any such Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.1(a) by any Affiliate or Representative of the Company or any of its Subsidiaries, whether or afford access not such person is purporting to the business, properties, assets, books or records act on behalf of the Company or any otherwise, shall be deemed to be a breach of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in this Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of by the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 2 contracts
Sources: Merger Agreement (Packard Bioscience Co), Merger Agreement (Perkinelmer Inc)
No Solicitation or Negotiation. Except From and after the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 8.1, and except as set forth otherwise specifically provided for in this Section 6.15.2, until the Specified Time, neither the Company nor any of its Subsidiaries shall, and the Company shall not, and shall cause the Company Subsidiary and its and its Subsidiaries’ their respective officers, directors and officers employees not to, and shall not authorize or knowingly permit any of use its reasonable best efforts to cause its and their respective other Representatives on behalf of the Company (including directing them) not to, directly or indirectly:
(i) Solicitsolicit, initiate, or knowingly encourageencourage or facilitate (including by way of furnishing information) any inquiry regarding, or induce any inquiries or the making, submission or announcement of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition a Competing Proposal;
(ii) enter into, continue engage or otherwise participate or engage in any discussions or negotiations regarding regarding, or furnish to any Acquisition Person any non-public information or data with respect to any Competing Proposal or any indication of interest inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition a Competing Proposal; or
(iii) take any action to exempt any Person (other than Parent and the Parent Subsidiaries) from the restrictions on “business combinations” or any similar provision contained in any applicable Takeover Statute or the Company Governing Documents The Company shall, shall cause the Company Subsidiary and its and their respective officers, directors and employees to, and shall use commercially reasonable efforts to cause (including by directing them) its and their respective other Representatives to, immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to any Competing Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to a Competing Proposal, and promptly instruct or furnish otherwise request (in each case, to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement), any Person that is seeking to make has executed a confidentiality or has made an Acquisition non-disclosure agreement in connection with any such Competing Proposal or potential Competing Proposal to return or destroy all such non-public information or documents or material incorporating confidential information in the possession of such Person or its Representatives in accordance with the terms of such confidentiality or non-disclosure agreement. Notwithstanding anything to the contrary contained in this Agreement, the Company and the Company Subsidiary and its and their respective Representatives may in response to a bona fide, written Competing Proposal (or any written indication by any Person that it may be considering making a Competing Proposal) (A) seek to clarify and understand the terms and conditions of interest that any such Competing Proposal (or indication or amended proposal) solely to determine whether such Competing Proposal or indication constitutes or would reasonably be expected to lead to an Acquisition a Superior Proposal and (B) inform a Person that has made any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records such Competing Proposal of the Company or any provisions of its Subsidiaries;
(iii) enter into any letter of intentthis Section 5.2, memorandum of understandingin each case, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for so long as the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this AgreementCompany, the Company may (A) furnish information Subsidiary and such Representatives otherwise comply with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 5.2 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)therewith.
Appears in 2 contracts
Sources: Merger Agreement (Indivior PLC), Merger Agreement (Indivior PLC)
No Solicitation or Negotiation. Except From the date of this Agreement until the Effective Time, except as set forth in this Section 6.15.1, until none of the Specified TimeAcquired Corporations shall, neither the Company nor shall any of its Subsidiaries shalltheir directors, officers, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, investment bankers, attorneys, accountants, other advisors and the Company shall cause its and its Subsidiaries’ directors and officers not torepresentatives, and shall not authorize or knowingly permit any of its other Representatives tocollectively, “Representatives”), directly or indirectly:
(i) Solicitsolicit, initiate, or knowingly encourageor intentionally encourage or facilitate, any inquiries, offers or proposals that constitute, or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (including, without limitation, amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Stock, except as expressly permitted by this Section); or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make any non-public information with respect to, assist or has made an participate in any effort or attempt by any Person with respect to, or otherwise knowingly or intentionally cooperate in any way with, any Acquisition Proposal (provided, however, that providing notice of the restrictions set forth in this Section 5.1 to a third party in response to any such inquiry, request or any indication Acquisition Proposal shall not, in and of interest itself, be deemed a breach of this Section). Notwithstanding the foregoing, prior to the time that would the Required Company Shareholder Vote has been obtained (the “Company Specified Time”), the Company may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, in response to an unsolicited, bona fide written Acquisition Proposal made or received after the date of this Agreement that the Company Board determines in good faith after consultation with outside counsel and its financial advisor is reasonably be expected likely to lead to an a “Superior Proposal,” in each case that did not result from a breach by the Company of, or actions by its Representatives inconsistent with, this Section, and subject to compliance with Section 5.1(c), (x) furnish non-public information with respect to the Company to the Person making such Acquisition Proposal and its Representatives, and (y) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal, if, in the case of either clause (x) or (y), prior to taking such action the Company enters into a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement. Without limiting the foregoing, it is agreed that any information relating to violation of the restrictions set forth in this Section 5.1(a) by any Representative of the Company or any of its Subsidiaries, whether or afford access not such Person is purported to the business, properties, assets, books or records act on behalf of the Company or otherwise, shall be deemed to be a breach of this Section 5.1(a) by the Company.
5.1 (b) No Change in Recommendation or Alternative Acquisition Agreement. Neither the Company Board nor any committee thereof shall:
(i) except as set forth in this Section, withdraw, qualify or modify, or publicly propose to withdraw, qualify or modify, in a manner adverse to Parent or the Merger Sub, the approval or recommendation by the Company Board or any such committee of its Subsidiariesthe adoption of this Agreement (a “Company Adverse Recommendation Change”);
(ii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Acquisition Proposal; or
(iii) authorize, cause or permit any of the Acquired Corporations to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by (an “Alternative Acquisition Agreement”) constituting or relating to any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a5.1(a) entered into in the circumstances referred to in Section 6.1(a5.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything foregoing, at any time prior to the contrary set forth in this AgreementCompany Specified Time and subject to Section 5.1(c), the Company may (A) furnish information with respect Board may, in response to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such an Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined determines in good faith (after consultation with its outside legal counsel and its financial advisor) constitutes a Superior Proposal and that was unsolicited and made after the date hereof and that did not otherwise result from a breach of this Section 5.1, make an Adverse Recommendation Change if the Company Board has concluded in good faith, after consultation with its outside counsel) , that, in light of such Superior Proposal, the failure of the Company Board to effect a Company Adverse Recommendation Change would result in a breach of its fiduciary duties under applicable Legal Requirements; provided, however, that the failure Company shall not be entitled to exercise its right to make a Company Adverse Recommendation Change pursuant to this sentence unless the Company has: (A) provided to Parent five business days’ prior written notice (such notice, a “Notice of Superior Proposal”), which notice shall not be deemed to be a Company Adverse Recommendation Change, advising Parent that the Company Board intends to take such action would be inconsistent with its fiduciary obligations under applicable lawand specifying the reasons therefor, including the then current material terms and conditions of any Superior Proposal that is the basis of the proposed action by the Company Board and the identity of the Person making the proposal (it being understood and agreed that any material amendment to any term of any such Superior Proposal shall require a new Notice of Superior Proposal and a new three business day period), (yB) during such five business day period (or three business day period, in the case of an amendment) if requested by Parent, the Company shall have entered engaged in good faith negotiations with Parent to amend this Agreement in such a manner that any Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal and (C) at the end of such period such Acquisition Proposal has not been withdrawn and continues to constitute a Superior Proposal (taking into a confidentiality agreement account any changes to the terms of which are no less favorable with respect this Agreement proposed by Parent following a Notice of Superior Proposal, as a result of the negotiations required by clause (B) or otherwise). Nothing in this Section 5.1 shall be deemed to (A) impermissibly circumscribe the ability of the Company than the Confidentiality Agreement Board to fulfill its fiduciary duty; (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information B) create an inference of Parent’s consent to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is taking any action described in clauses (ii) or (iii) of the first sentence of this Section 5.1(b), or (C) except upon a Qualified Person termination of this Agreement pursuant to Section 7.1(i), limit the Company’s obligation to call, give notice of, convene and (3) contemporaneously with furnishing any information to such Personhold the Shareholders’ Meeting, regardless of whether the Company furnishes such information to the Parent (to the extent such information Board has not been previously furnished or made available by the effected a Company to the Parent)Adverse Recommendation Change.
Appears in 2 contracts
Sources: Merger Agreement (Sys), Agreement and Plan of Merger and Reorganization (Sys)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until During the Specified TimePre-Closing Period, neither the Company nor any of its Subsidiaries shall, and the Company shall cause its directors, officers, employees, investment bankers, attorneys, accountants and its Subsidiaries’ directors other advisors and officers representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, or knowingly encourage, encourage or induce facilitate (including by way of furnishing information) any inquiries or the making, submission or announcement making of any proposal, proposal or offer (including any proposal from or indication of interest that constitutesoffer to the Company’s shareholders) with respect to, or would that could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make person any non-public information or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford grant access to the business, its properties, assetsbooks and records or personnel in connection with, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)Proposal. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may may, prior to the adoption of the Company Voting Proposal only, solely to the extent necessary for the Company Board to comply with its fiduciary obligations under applicable law, as determined in good faith by the Company Board after consultation with outside counsel, in response to a bona fide, unsolicited written Acquisition Proposal (Asatisfying clause (i) of the definition thereof) received by the Company after the date of this Agreement that the Company Board determines in good faith after consultation with outside counsel and its financial advisor could reasonably be expected to result in a Superior Proposal, in each case, so long as such Acquisition Proposal did not result from a material breach by the Company of this Section 6.1 and the Company has complied in all material respects with this Section 6.1, including Section 6.1(c), (x) furnish information with respect to the Company to the person making such Acquisition Proposal and its Subsidiaries Representatives pursuant to any Qualified Person a customary confidentiality agreement not materially less restrictive of the other party than the Confidentiality Agreement, (and the Representatives of such Qualified Person), or (By) participate or engage in discussions or negotiations (including solicitation of a revised Acquisition ProposalsProposal) with any Qualified Person (such person and the its Representatives of such Qualified Person) regarding any such Acquisition Proposal or (Cbut only after (I) such person enters into a confidentiality agreement with the Company at least as restrictive as the Confidentiality Agreement and (II) concurrently with the delivery to such person, the Company delivers to the Buyer all such information not previously provided to the Buyer), and (z) amend, or grant a waiver or release under, any standstill or similar agreementagreement with respect to any Company Common Stock; provided, however, that in the case of any action taken pursuant Company may only so amend or so grant a waiver or release (i) to the foregoing clauses (A), (B) or (C), (1) none of extent that the Company has also previously or concurrently amended or granted a release or waiver under any of standstill or similar agreement affecting the Buyer and its Subsidiaries shall have breached or violated in any material respect Affiliates and (ii) to the terms of this Section 6.1 in connection with such Qualified Person, (2) prior extent necessary to taking any of the actions set forth in clause (A) or (B) with respect permit non-public proposals to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect made to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Board.
Appears in 2 contracts
Sources: Merger Agreement (Concerto Software Inc), Merger Agreement (Aspect Communications Corp)
No Solicitation or Negotiation. Except From the date of this Agreement until the Effective Time, except as set forth in this Section 6.15.1, until none of the Specified Time, neither the Company nor any of its Subsidiaries Acquired Corporations shall, and the Company nor shall cause its and its Subsidiaries’ directors and officers not to, and shall not they authorize or knowingly permit any of its the Acquired Corporations’ directors, officers, employees, investment bankers, attorneys, accountants or other Representatives advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to, directly or indirectly:
(i) Solicitsolicit, initiate, or knowingly encourageor intentionally encourage or facilitate, any inquiries, offers or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest proposals that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (including, without limitation, amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Stock, except as expressly permitted by this Section); or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make any non-public information with respect to, assist or has made an Acquisition Proposal participate in any effort or attempt by any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its SubsidiariesPerson with respect to, or afford access to the businessotherwise knowingly or intentionally cooperate in any way with, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal (provided, however, that providing notice of the restrictions set forth in this Section 5.1 to a third party in response to any such inquiry, request or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than shall not, in and of itself, be deemed a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any breach of its Subsidiaries and any Person (other than the Parentthis Section). Notwithstanding the foregoing or anything foregoing, prior to the contrary set forth time that the Required Company Stockholder Vote has been obtained (the “Company Specified Time”), the Company may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, in response to a bona fide written unsolicited Acquisition Proposal made or received after the date of this Agreement that the Company Board determines in good faith after consultation with outside counsel and its financial advisor is reasonably likely to lead to a Superior Proposal, in each case that did not result from a breach by the Company of, or actions by its Representatives inconsistent with, this Section, and subject to compliance with Section 5.1(c), (x) furnish non-public information with respect to the Acquired Corporations to the Person making such Acquisition Proposal and its Representatives, and (y) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal, if, in the case of either clause (x) or (y), prior to taking such action the Company enters into a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement. In addition, the Company may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, waive standstill provisions in effect with a third party whose identity has been disclosed to Parent, in response to an unsolicited request from such third party for such a waiver, provided such party has either made a Superior Proposal or has expressed to the Company an intention to make an Acquisition Proposal that the Company Board determines in good faith after consultation with outside counsel and its financial advisor is reasonably likely to lead to a Superior Proposal. Promptly following the execution of this Agreement, the Company may (A) furnish information with respect shall instruct its Representatives as to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions restrictions set forth in clause (Athis Section 5.1(a) or (B) and direct them to comply with respect its provisions and shall thereafter use its reasonable best efforts to a Qualified Person, (x) assure that the Company Board shall have determined in good faith (after consultation Representatives comply with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)instructions.
Appears in 2 contracts
Sources: Merger Agreement (Amis Holdings Inc), Merger Agreement (On Semiconductor Corp)
No Solicitation or Negotiation. Except Stockholder covenants and agrees that, prior to the Expiration Date, Stockholder shall not, nor shall it authorize or permit, as set forth in this Section 6.1applicable, until the Specified Time, neither the Company nor any of its Subsidiaries shallsubsidiaries or its or their directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and the Company shall cause its and its Subsidiaries’ directors and officers not torepresentatives, and shall not authorize or knowingly permit any of its other Representatives tocollectively, “Representatives”) to directly or indirectly:
(i) Solicitsolicit, initiate, encourage or knowingly encourage, or induce facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Company Acquisition Proposal;Proposal or Stockholder Acquisition Proposal (each as defined below), including without limitation amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Stock or Stockholder Common Stock; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, furnish to any person any information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Company Acquisition Proposal or Stockholder Acquisition Proposal or any indication of interest inquiry, proposal or offer that would could reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Company Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Stockholder Acquisition Proposal any information relating Proposal. Notwithstanding the foregoing and subsection (e) below:
(i) to the Company extent any Representative of Stockholder is a director of the Company, Stockholder may permit such Representative to take such actions in his or any of its Subsidiaries, or afford access to the business, properties, assets, books or records her capacity as director of the Company as are expressly permitted to be taken by the Board of Directors of the Company with respect to a Company Acquisition Proposal pursuant to (A) Section 6.1(a) of the Merger Agreement in connection with a bona fide, unsolicited Company Acquisition Proposal made or received after the date of this Agreement, (B) Section 6.1(b) of the Merger Agreement and (C) Section 6.1(d) of the Merger Agreement, in each case subject to the conditions and limitations set forth in the Merger Agreement and in the case of (A) and (B), as long as such actions do not follow a breach by such Representative of this Section 7 or a breach by the Company of Section 6.1 of the Merger Agreement.
(ii) to the extent any Representative of its Subsidiaries;Stockholder is a director of the Stockholder, Stockholder may permit such Representative to take such actions in his or her capacity as director of Stockholder as are expressly permitted to be taken by the Board of Directors of Stockholder with respect to a Stockholder Acquisition Proposal pursuant to (A) Section 7(a)(iv) of this Agreement in connection with a bona fide, unsolicited Stockholder Acquisition Proposal made or received after the date of this Agreement, (B) Section 7(b) of this Agreement and (C) Section 7(d) of this Agreement, in each case subject to the conditions and limitations set forth in this Agreement and in the case of (A) and (B), as long as such actions do not follow a breach by such Representative or Stockholder of this Section 7.
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company Stockholder may (Ax) furnish information with respect to the Company to a person making a Company Acquisition Proposal and its Subsidiaries Representatives pursuant to a customary confidentiality agreement with terms no less favorable to Stockholder than the Confidentiality Agreement (as defined in the Merger Agreement) is favorable to the Company and (y) participate in discussions or negotiations with such person and its Representatives regarding any Qualified Person Company Acquisition Proposal, in each case only to the same extent as the Company is taking such actions in compliance with Section 6.1(a) of the Merger Agreement in connection with such Company Acquisition Proposal.
(and iv) prior to the Representatives receipt of such Qualified Personthe Requisite Stockholder Approval at the Stockholder Meeting (each as defined below), Stockholder may, to the extent required by the fiduciary obligations of the Stockholder Board or any special committee thereof, as determined in good faith by the Stockholder Board or any such special committee, after consultation with its outside counsel, in response to a bona fide, unsolicited Stockholder Acquisition Proposal made or received after the date of this Agreement (Bincluding, without limitation, a Stockholder Acquisition Proposal received from a person with whom Stockholder had discussions or to whom Stockholder furnished information prior to the date hereof) that the Stockholder Board or any special committee determines in good faith after consultation with its outside counsel and its financial advisor is a Stockholder Superior Proposal (as defined below), in each case that did not follow a breach by Stockholder of this Section 7, and subject to compliance with Section 7(c), (x) furnish information with respect to Stockholder to the person making such Stockholder Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement with terms no less favorable to Stockholder than the Confidentiality Agreement (as defined in the Merger Agreement) is favorable to the Company and (y) participate or engage in discussions or negotiations (including solicitation of a revised Stockholder Acquisition ProposalsProposal) with any Qualified Person (such person and the its Representatives of such Qualified Person) regarding any such Stockholder Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in Proposal. The foregoing shall not prohibit the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to Stockholder from taking any of the actions set forth in clause clauses (Ax) or and (By) of the immediately preceding sentence with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable Acquisition Proposal with respect to which the Company’s Board of Directors (or special committee thereof) has made the determination specified in the last paragraph of Section 6.1(a) of the Merger Agreement in accordance with the terms thereof for so long as such determination remains in effect, to the extent that such actions are permitted to be taken by the by the Board of Directors of the Company than with respect to such Company Acquisition Proposal pursuant to Section 6.1(a) of the Confidentiality Merger Agreement (which confidentiality agreement shall not include any provisions that would prevent in connection with a bona fide, unsolicited Company Acquisition Proposal made or restrict received after the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision date of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information subject to the Parent (to conditions and limitations set forth in the extent Merger Agreement and as long as such information has actions do not been previously furnished follow a breach by the Stockholder of this Section 7 or made available a breach by the Company of Section 6.1 of the Merger Agreement. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7(a) by any Representative of Stockholder or any subsidiary of it, whether or not such person is purporting to the Parent)act on behalf of Stockholder or otherwise, shall be deemed to be a breach of this Section 7(a) by Stockholder.
Appears in 2 contracts
Sources: Majority Stockholder Voting Agreement (Infospace Inc), Majority Stockholder Voting Agreement (Epresence Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the Company nor any of its Subsidiaries shallshall not, and the Company shall (i) cause its Subsidiaries and its Subsidiaries’ directors and each of their respective directors, officers not toand employees, and shall (ii) use its reasonable best efforts to cause its investment bankers, attorneys, accountants and other advisors and representatives (any person’s directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives being referred to collectively herein as such person’s “Representatives”), not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, knowingly encourage or knowingly encourage, or induce take any other action to facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;, including but not limited to (A) approving any transaction under Section 203 of the DGCL, and (B) approving any person becoming an “interested stockholder” under Section 203 of the DGCL; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person person any information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal. Notwithstanding the foregoing, prior to the adoption of this Agreement at the Company Meeting (the “Specified Time”), the Company may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, in response to a proposal that constitutes (or that the Company Board determines in good faith, after consultation with outside legal counsel and its independent financial adviser, is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected reasonable likely to lead to) a Superior Proposal that did not result from a breach by the Company of this Section 6.1, and subject to an Acquisition Proposal compliance with Section 6.1(c), (x) furnish information with respect to the Company to the person making the proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement (provided that the confidentiality agreement need not contain a standstill or similar provision) and (y) participate in discussions or negotiations (including solicitation of a revised proposal) with such person and its Representatives regarding the proposal. Without limiting the foregoing, it is agreed that any information relating to violation of the restrictions set forth in this Section 6.1(a) or the taking of any actions inconsistent with the restrictions set forth in Section 6.1(a) by any Representative of the Company or any of its Subsidiaries, whether or afford access not such person is purporting to the business, properties, assets, books or records act on behalf of the Company or any otherwise, shall be deemed to be a breach of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in this Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between by the Company or any for all purposes under this Agreement including for purposes of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (ASection 8.3(c)(ii) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A)actions by directors, (B) or (C), (1) none officer and employees of the Company or any of its Subsidiaries shall have breached or violated (but excluding for purposes of Section 8.3(c)(ii) in any material respect the terms case of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parentother Representatives).
Appears in 2 contracts
Sources: Merger Agreement (Skyworks Solutions, Inc.), Agreement and Plan of Merger (Advanced Analogic Technologies Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the termination of this Agreement in accordance with the terms hereof (the “Specified Time”), neither the Company nor any of its Subsidiaries shall, and the Company shall cause not permit or authorize its directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and its Subsidiaries’ directors and officers not torepresentatives, and shall not authorize or knowingly permit any of its other Representatives collectively, “Representatives”) to, directly or indirectly:
(i) Solicitsolicit, initiate, initiate or knowingly encourage, or induce take any action to knowingly facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;, including without limitation amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Stock; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make person any non-public information with respect to, assist or has made an Acquisition Proposal participate in any effort or attempt by any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiariesperson with respect to, or afford access to the businessotherwise cooperate in any way with, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)Proposal. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to receipt of the Company may Stockholder Approval, in response to a bona fide Acquisition Proposal that did not result from a breach of this Section 6.1, and subject to compliance with Section 6.1(c), the Company may, to the extent the failure to do so would be inconsistent with the fiduciary obligations of the Company Board, as determined in good faith after consultation with outside counsel, (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person person (and the Representatives of such Qualified Person), or (Bperson) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such making an Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined determines in good faith (after consultation with outside legal counselcounsel and its financial advisors) that the failure is reasonably likely to take such action would be inconsistent with its fiduciary obligations under applicable lawlead to a Superior Proposal (a “Qualified Bidder”), (y) the Company shall have entered into pursuant to a customary confidentiality agreement not materially less restrictive of the terms of which are no less favorable with respect to the Company other party than the Confidentiality Agreement (but which confidentiality agreement shall need not include any provisions that would prevent have standstill provisions), and (B) engage in discussions or restrict the Company or negotiations with a Qualified Bidder and its Representatives from providing regarding any information to the Parent to which the Parent would be entitled under any provision such Acquisition Proposal (including solicitation of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parentrevised Acquisition Proposals).
Appears in 2 contracts
Sources: Merger Agreement (Saucony Inc), Merger Agreement (Stride Rite Corp)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the Company shall not, nor shall it authorize or permit any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its or their directors, officers, employees, investment bankers, attorneys, accountants or other Representatives toadvisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to directly or indirectly:
(i) Solicitsolicit, initiate, knowingly or knowingly intentionally encourage, or induce take any other action to facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;, including without limitation amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Stock; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make any information with respect to, assist or has made an participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal (provided, however, that providing notice of the restrictions set forth in this Section 6.1 to a third party in response to any such inquiry, request or any indication Acquisition Proposal shall not, in and of interest itself, be deemed a breach of this Section 6.1). Notwithstanding the foregoing, prior to the approval of the principal terms of the Merger at the Company Shareholders Meeting (the “Specified Time”), the Company may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, in response to a bona fide written Acquisition Proposal made or received after the date of this Agreement that would the Company Board determines in good faith after consultation with outside counsel and a nationally recognized independent financial advisor is reasonably be expected likely to lead to an a Superior Proposal, in each case that did not result from a breach by the Company of, or actions by its Representatives inconsistent with, this Section 6.1, and subject to compliance with Section 6.1(c), (x) furnish information with respect to the Company to the Person making such Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Company Confidentiality Agreement and (y) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal. Without limiting the foregoing, it is agreed that any information relating to violation of the restrictions set forth in this Section 6.1(a) by any Representative of the Company or any of its Subsidiaries, whether or afford access not such Person is purporting to the business, properties, assets, books or records act on behalf of the Company or any otherwise, shall be deemed to be a breach of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in this Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of by the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 2 contracts
Sources: Merger Agreement (Avid Technology Inc), Merger Agreement (Pinnacle Systems Inc)
No Solicitation or Negotiation. Subject to the provisions of this Section 6.1, following the No-Shop Start Date, the Company shall immediately cease or cause to be terminated any activities that would otherwise be a violation of the restrictions set forth in this subsection (b) conducted theretofore by the Company or its Representatives with respect to any Acquisition Proposal; provided, however that notwithstanding such restrictions the Company may continue discussions or negotiations with any person pursuant to and in accordance with this Section 6.1 that has made an Acquisition Proposal on or prior to the No-Shop Start Date if the Company’s Board of Directors determines in good faith (after consultation with outside counsel and financial advisors) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal. Except as set forth in this Section 6.1, until the termination of this Agreement in accordance with the terms hereof (the “Specified Time”), neither none of the Company nor any of its Subsidiaries shall, and the Company shall use all commercially reasonable efforts to cause its directors, officers, employees, investment bankers, attorneys, accountants and its Subsidiaries’ directors other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and officers representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, or seek, knowingly encourage, knowingly facilitate, knowingly support or induce respond to any inquiries or requests for any information with respect to, or the making, announcement or submission of, any proposal or announcement of any proposal, offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) engage, enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or person any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation purpose of a transaction contemplated by encouraging or facilitating, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)Proposal. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, in response to an Acquisition Proposal that did not result from a breach of this Section 6.1, and subject to compliance with Section 6.1(c), the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person person (and the Representatives of such Qualified Person)person) making an Acquisition Proposal that the Company Board first determines in good faith (after consultation with outside counsel and its financial advisors) either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal, or pursuant to a confidentiality agreement not materially less restrictive of the other party than the Confidentiality Agreement and (B) participate or engage in discussions or negotiations (including solicitation of a revised Acquisition ProposalsProposal) with any Qualified Person (such person and the its Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) Proposal, and amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case agreement with respect to any Company Common Stock (a copy of any action taken pursuant which was provided to the foregoing clauses (ABuyer prior to the execution of this Agreement), (B) or (C), (1) none . The parties agree that any violation of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking by any of the actions set forth in clause (A) or (B) with respect Representatives shall be deemed to be a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision breach of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available Section 6.1 by the Company to the Parent)and its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Biosphere Medical Inc), Merger Agreement (Merit Medical Systems Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the Company shall not, nor shall it (i) authorize or permit any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not or (ii) authorize or knowingly permit any of its or its Subsidiaries’ respective directors, officers, employees, investment bankers, attorneys, accountants or other Representatives advisors, agents or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to, directly or indirectly:
(i) Solicitsolicit, initiate, encourage or knowingly encourage, or induce take any other action to facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Company Acquisition Proposal;, including without limitation (A) approving any transaction under Section 203 of the DGCL, (B) approving any person becoming an “interested stockholder” under Section 203 of the DGCL, or (C) amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Stock, Parent ADSs or Parent Ordinary Shares, respectively; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking person or permit any person access to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Company Acquisition Proposal. Notwithstanding the foregoing, prior to the adoption of this Agreement at the Company or any of its SubsidiariesStockholders Meeting (the “Specified Time”), or afford access the Company may, to the business, properties, assets, books or records extent required by the fiduciary obligations of the Company or any of its Subsidiaries;
(iii) enter into any letter of intentBoard, memorandum of understanding, agreement as determined in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated good faith by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything Board, after consultation with outside counsel, in response to the contrary set forth in this Agreement, a Qualifying Proposal that did not result from a breach by the Company may of this Section 6.1, and subject to compliance with Section 6.1(c), (Ax) furnish information with respect to the Company to the person making such Qualifying Proposal and its Subsidiaries Representatives pursuant to any Qualified Person a confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (and the Representatives of such Qualified Person), or (By) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or person and its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that regarding such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Qualifying Proposal.
Appears in 2 contracts
Sources: Merger Agreement (New Focus Inc), Merger Agreement (Bookham Technology PLC)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.3, neither the Company it nor any of its the Company Subsidiaries nor any of the elected officers and directors of it or the Company Subsidiaries shall, and the Company that it shall instruct and use its reasonable best efforts to cause its and its the Company Subsidiaries’ directors other employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit, seek, encourage or knowingly encourage, or induce facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Alternative Proposal;
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an Acquisition Proposal or relating to, any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;Alternative Proposal; or
(iii) enter into otherwise knowingly facilitate any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement effort or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected attempt to lead to make an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into Alternative Proposal. Notwithstanding anything in the circumstances referred foregoing to in Section 6.1(a)); or
(iv) terminatethe contrary, amendprior to the time, waive or fail to enforce any rights under any “standstill” or other similar agreement between but not after, the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this AgreementStockholder Approval is obtained, the Company may (A) provide information in response to a request therefor by a Person who has made an unsolicited bona fide written Alternative Proposal if the Company receives from the Person so requesting such information an executed Acceptable Confidentiality Agreement, promptly notifies Parent in writing that it intends to furnish information and discloses to Parent (and, if applicable, provides copies of), prior to or concurrently with respect disclosure to such Person, any such information to the Company and its Subsidiaries extent not previously provided to any Qualified Person (and the Representatives of such Qualified Person)Parent, or (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and who has made such an unsolicited bona fide written Alternative Proposal if the Representatives of Company notifies Parent in writing that it intends to enter into such Qualified Person) regarding any such Acquisition Proposal discussions or negotiations or (C) amendafter having complied with Section 6.3(c) approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Alternative Proposal, howeverif and only to the extent that, that in the case of (x) prior to taking any action taken pursuant to the foregoing clauses described in clause (A), (B) or (C)) above, the Company Board determines in good faith after consultation with outside legal counsel that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, (1y) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with each such Qualified Person, (2) prior case referred to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personabove, (x) the Company Board shall have has determined in good faith based on the information then available and after consultation with its financial advisor that such Alternative Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal, and (z) in the case referred to in clause (C) above, the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Alternative Proposal is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Consolidated Graphics Inc /Tx/), Merger Agreement (RR Donnelley & Sons Co)
No Solicitation or Negotiation. Except The Company hereby covenants that, except as set forth in expressly permitted by this Section 6.16.2, until the Specified Time, neither the Company nor any of its Subsidiaries shallshall not, and the Company shall instruct and use its reasonable best efforts to cause its officers, directors, employees, investment bankers, attorneys, accountants and its Subsidiaries’ directors other advisors or representatives (such officers, directors, employees, investment bankers, attorneys, accountants and officers other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly, and on becoming aware of, shall take reasonable action to stop its Representatives from continuing to:
(i) Solicitsolicit, initiate, initiate or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (as defined in Section 6.2(d)); or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person any non-public information for the purpose of encouraging or facilitating, any Acquisition Proposal. The Company shall, and shall direct its Representatives to, cease immediately and cause to be terminated all discussions and negotiations that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating commenced prior to the Company or any date of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by this Agreement regarding any Acquisition Proposal or any indication existing on the date of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)this Agreement. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Agreement the Company may may, to the extent the Company Board determines in good faith, after consultation with outside counsel, that such action is likely required under applicable Law, in response to (A) a Superior Proposal (as defined in Section 6.2(d)) or (B) a bona fide, unsolicited written Acquisition Proposal that the Company Board determines in good faith after consultation with outside counsel and its financial advisor could lead to a Superior Proposal (any such Acquisition Proposal, a “Potential Superior Proposal”), (1) furnish information with respect to the Company to the Person making such Superior Proposal or Potential Superior Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party (except that it need not include any “standstill” provisions) than the Confidentiality Agreement, dated January 13, 2005, between Parent and the Company (the “Confidentiality Agreement”) (provided, however, that, to the extent any such confidentiality agreement does not contain any “standstill” provisions, the Confidentiality Agreement shall be automatically amended (without any further action by the parties) such that the “standstill” provisions in the Confidentiality Agreement restricting activities of Parent and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Personshall be deleted), or and (B2) participate or engage in discussions or negotiations (including solicitation of such a revised Acquisition ProposalsSuperior Proposal or Potential Superior Proposal) with any Qualified such Person (and the its Representatives of such Qualified Person) regarding any such Acquisition Superior Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Potential Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Usf Corp), Merger Agreement (Yellow Roadway Corp)
No Solicitation or Negotiation. Except as set forth in this Section 6.14, until prior to the Specified TimeExpiration Date, neither the Company Stockholder shall not, nor shall the Stockholder authorize or permit Parent or any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize Parent’s subsidiaries or knowingly permit any of its Parent’s or Parent’s subsidiaries’ respective directors, officers, employees, affiliates, investment bankers, attorneys, accountants or other Representatives toadvisors or representatives (such subsidiaries, directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Stockholder Representatives”) to directly or indirectly:
(i) Solicitsolicit, initiate, or knowingly encourage, encourage or induce any inquiries or the making, submission or announcement of any proposal, offer Acquisition Proposal;
(ii) participate in any discussions or indication of interest that constitutesnegotiations regarding, or would furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal;
(iiiii) enter into, continue or otherwise participate or engage in discussions with any discussions or negotiations regarding person with respect to any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iiiiv) approve, endorse or recommend any Acquisition Proposal; or
(v) enter into any letter of intent, memorandum of understandingintent or similar document or any contract, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by commitment contemplating or otherwise relating to any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal Transaction (other than a confidentiality agreement referred to in Section 6.1(a) entered into as defined in the circumstances referred to in Section 6.1(aPurchase Agreement)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that Stockholder may, solely in the case Stockholder’s capacity as a Representative (as such term is defined in the Purchase Agreement) of any action taken pursuant to the foregoing clauses (A)Parent, (Btake such actions as may be permitted under Section 6.2(a) or (C), (1) none of the Company Purchase Agreement, but only if the conditions set forth in Section 6.2(a) for such actions have been satisfied. The Stockholder agrees that any violation of the restrictions set forth in this Section 4 by any Stockholder Representative or any affiliate of its Subsidiaries the Stockholder or any Stockholder Representative, whether or not such Person is purporting to act on behalf of the Stockholder, shall have breached or violated in any material respect constitute a breach by the terms Stockholder of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)4.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Effective Time, neither the each of Merger Partner, Public Company nor any of its Subsidiaries shalland their respective subsidiaries shall not, and the each of Merger Partner and Public Company shall use reasonable best efforts to cause its their respective directors, officers, employees, attorneys, accountants, consultants, agents, financial advisors and its Subsidiaries’ directors and officers other representatives (collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, seek or initiate or knowingly encouragetake any action to facilitate or encourage any offers, or induce any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal Proposal, or furnish to any indication person any non-public information or afford any person other than Public Company or Merger Partner, as applicable, access to such Party’s property, books or records (except pursuant to a request by a Governmental Entity) in connection with any offers, inquiries or the making of interest any proposal or offer that constitutes, or would reasonably be expected to lead to an to, any Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into take any letter action to make the provisions of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction any takeover statute inapplicable to any transactions contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))Proposal; or
(iv) terminate, amend, waive or fail publicly propose to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person the foregoing described in clauses (other than the Parenti) through (iii). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 6.1(c), prior to the Specified Time, each of Public Company and Merger Partner, and their respective Representatives, may (A) furnish non-public information with respect to the Public Company and its Subsidiaries subsidiaries or Merger Partner, as the case may be, to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementProposal; provided, however, (x) that either Merger Partner or Public Company (as applicable) receives from the Qualified Person an executed confidentiality agreement on the terms not less restrictive than exist in the case Confidentiality Agreement and, if entered into after the date of any action taken pursuant this Agreement, containing additional provisions that expressly permit such party to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the comply with this terms of this Section 6.1 in connection with such Qualified Person(a copy of which shall be provided to the other party), (2y) prior the Party seeking to taking any make use of the actions set forth in clause (A) or (B) this proviso has not otherwise materially breached this Section 6.1 with respect to a Qualified Personsuch Acquisition Proposal or the person making such Acquisition Proposal, and (xz) the Merger Partner Board or Public Company Board shall have (as applicable) has determined in good faith (after consultation with outside legal counsel) that the failure to take such action actions would reasonably be expected to be inconsistent with its fiduciary obligations duties under applicable lawLaw. It is understood and agreed that any violation of the restrictions in this Section 6.1 (or action that, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the if taken by Public Company or its Representatives from providing Merger Partner, as applicable, would constitute such a violation) by any information director, officer, attorney, or financial advisor of Public Company or Merger Partner shall be deemed to the Parent to which the Parent would be entitled under any provision a breach of this Agreement) and (z) the Section 6.1 by Public Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Personor Merger Partner, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)as applicable.
Appears in 1 contract
Sources: Merger Agreement (Kindly MD, Inc.)
No Solicitation or Negotiation. The Company and its Subsidiaries shall, and the Company and its Subsidiaries shall direct or use its reasonable best efforts to cause their directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to, immediately cease any discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal and, as promptly as practicable, and in any event not later than five days after the date hereof, request and thereafter use their reasonable best efforts to obtain the return or destruction (and certification thereof) of all confidential material provided to other persons interested in acquiring the Company or who otherwise participated, as a potential bidder or as an advisor or Representative to a potential bidder, in the possible acquisition of the Company. Except as set forth in this Section 6.1, until the termination of this Agreement in accordance with the terms hereof (the “Specified Time”), neither the Company nor any of its Subsidiaries shall, and the Company shall direct or use its reasonable best efforts to cause its and its Subsidiaries’ directors and officers Representatives not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, initiate or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation purpose of a transaction contemplated by encouraging or facilitating, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)Proposal. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, in response to an Acquisition Proposal that did not result from a breach of this Section 6.1, and subject to compliance with Section 6.1(c), the Company may take the following actions if the Company Board determines in good faith (after consultation with outside counsel and its financial advisors) that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal and that the taking of such action is consistent with fiduciary duties under applicable law: (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Personperson) making an Acquisition Proposal pursuant to a customary confidentiality agreement not materially less restrictive of the other party than the Confidentiality Agreement (which need not have standstill provisions), or (B) participate or engage in discussions or negotiations (including solicitation of a revised Acquisition ProposalsProposal) with any Qualified such Person (and the its Representatives of such Qualified Person) regarding any such Acquisition Proposal or Proposal, and (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) agreement with respect to a Qualified Person, (x) the any Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Common Stock.
Appears in 1 contract
Sources: Merger Agreement (I Many Inc)
No Solicitation or Negotiation. Except as set forth in expressly permitted by this Section 6.16.2 (including Section 6.2(c)) and except as may relate to any Excluded Party, until the Specified Time, neither the Company nor any of and its Subsidiaries and their respective directors and officers shall, and the Company shall cause direct its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitat 12:01 a.m. on July 3, 2013 the (“No-Shop Period Start Date”) immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and request promptly thereafter that such persons return or destroy all confidential information concerning the Company and its Subsidiaries provided by the Company or its Subsidiaries or Representatives and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, not (A) initiate, solicit or knowingly encourage, encourage or induce facilitate any inquiries or the making, submission or announcement making of any proposalproposal or offer that constitutes or could reasonably be expected to lead to an Acquisition Proposal, offer (B) engage in or indication of interest that constitutesotherwise participate in any discussions or negotiations regarding, or would provide any non-public information or data concerning the Company or its Subsidiaries to any Person relating to, or that could reasonably be expected to lead to, any Acquisition Proposal;
, (ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iiiC) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a6.2(a)) entered into in providing for any Acquisition Proposal or requiring the circumstances referred Company to in Section 6.1(a)); or
(iv) abandon, terminate, amend, waive breach or fail to enforce any rights under any consummate the transactions contemplated by this Agreement (an “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Alternative Acquisition Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person”), or (BD) participate otherwise knowingly facilitate any effort or engage in discussions or negotiations (including solicitation of revised attempt to make an Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Proposal.
Appears in 1 contract
Sources: Merger Agreement (Rue21, Inc.)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Effective Time, neither the each of Merger Partner, Public Company nor any of its Subsidiaries shalland their respective subsidiaries shall not, and the each of Merger Partner and Public Company shall use reasonable best efforts to cause its and its Subsidiaries’ directors and officers not totheir respective directors, officers, employees, attorneys, and shall financial advisors (“Representatives”) not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, seek or initiate or knowingly encouragetake any action to facilitate or encourage any offers, or induce any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal Proposal, or furnish to any indication person any non-public information or afford any person other than Public Company or Merger Partner, as applicable, access to such party’s property, books or records (except pursuant to a request by a Governmental Entity) in connection with any offers, inquiries or the making of interest any proposal or offer that constitutes, or would reasonably be expected to lead to an to, any Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into take any letter action to make the provisions of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction any takeover statute inapplicable to any transactions contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))Proposal; or
(iv) terminate, amend, waive or fail publicly propose to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person the foregoing described in clauses (other than the Parenti) through (iii). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 6.1(c), prior to the Specified Time, each of Public Company and Merger Partner, and their respective Representatives, may (A) furnish non-public information with respect to the Public Company and its Subsidiaries subsidiaries or Merger Partner, as the case may be, to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementProposal; provided, however, (x) that either Merger Partner or Public Company (as applicable) receives from the Qualified Person an executed confidentiality agreement on the terms not less restrictive than exist in the case Confidentiality Agreement and, if entered into after the date of any action taken pursuant this Agreement, containing additional provisions that expressly permit such party to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the comply with this terms of this Section 6.1 in connection with such Qualified Person(a copy of which shall be provided to the other party), (2y) prior the party seeking to taking any make use of the actions set forth in clause (A) or (B) this proviso has not otherwise materially breached this Section 6.1 with respect to a Qualified Personsuch Acquisition Proposal or the person making such Acquisition Proposal, and (xz) the Merger Partner Board or Public Company Board shall have (as applicable) has determined in good faith (after consultation with outside legal counsel) that the failure to take such action actions would reasonably be expected to be inconsistent with its fiduciary obligations duties under applicable lawLaw. It is understood and agreed that any violation of the restrictions in this Section 6.1 (or action that, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the if taken by Public Company or its Representatives from providing Merger Partner, as applicable, would constitute such a violation) by any information director, officer, attorney, or financial advisor of Public Company or Merger Partner shall be deemed to the Parent to which the Parent would be entitled under any provision a breach of this Agreement) and (z) the Section 6.1 by Public Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Personor Merger Partner, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)as applicable.
Appears in 1 contract
Sources: Merger Agreement (IMARA Inc.)
No Solicitation or Negotiation. Except as set forth in The Company agrees that between the date of this Section 6.1Agreement and the earlier of (a) the Closing and (b) the termination of this Agreement, until the Specified Time, neither the Company nor any of its Subsidiaries shallwill not, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall will not authorize or knowingly permit any of its Subsidiary, or any Affiliate, officer, director or employee of, or any financial adviser, accountant or other Representatives representative retained by, the Company or any Subsidiary (collectively, the "Representatives"), to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission proposals for (or announcement of any proposal, offer or indication of interest that constitutes, or would which may reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations with or provide any information to any person or entity (including solicitation other than a Representative of revised Acquisition Proposalsthe Company or Purchaser) with in connection with, (i) the acquisition of any Qualified Person stock, assets or business of the Company or any Subsidiary, (and ii) any merger or consolidation involving the Representatives of such Qualified Person) regarding Company or any such Acquisition Proposal Subsidiary, or (Ciii) amendany recapitalization or restructuring of the Company or any Subsidiary, or grant in each case, regardless of whether a waiver or release underthird party is involved, any standstill or similar agreement; provided, however, that the foregoing will not prohibit the Company from providing information to any person or entity to the extent that the Board determines in good faith, after consultation with outside counsel as to legal matters, that its fiduciary duties require it to do so, provided that prior to providing such information (i) the case Company notifies and reasonably consults with Purchaser in connection therewith and (ii) such person or entity has entered into a customary confidentiality agreement reasonably acceptable to the Board. The Company immediately will cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any persons conducted heretofore with respect to any of any action taken the foregoing, except as required hereby or expressly permitted pursuant to the foregoing clauses immediately preceding sentence. The Company will notify Purchaser, in writing, promptly (but in any event no later than one business day) after any such proposal or offer or any inquiry or other contact with any person with respect thereto, is made and will, in any such notice to Purchaser, (A)) indicate in reasonable detail the identity of the person, firm, corporation or other entity making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or other contact and (B) include all written materials received with respect thereto. The Company agrees not to, and to cause each Subsidiary not to, without the prior written consent of Purchaser, release any person, firm, corporation or (C)other entity from, (1) none of or waive any provision of, and confidentiality or standstill agreement to which the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Subsidiary is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Knowledge Capital Investment Group)
No Solicitation or Negotiation. Except as set forth in this Section 6.17.1, until the Specified Effective Time, neither each of the Company, the Parent and their respective Subsidiaries shall not, and each of the Company nor any of its Subsidiaries shall, and the Company Parent shall cause its their respective directors, officers, members, employees, agents, attorneys, consultants, contractors, accountants, financial advisors and its Subsidiaries’ directors and officers other authorized representatives (“Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, seek or initiate or knowingly encouragetake any action to facilitate or encourage any offers, or induce any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal, or engage, participate in, or knowingly facilitate, any discussions or negotiations regarding, or furnish any nonpublic information to any person in connection with any inquiries, proposals or offers that constitute or could reasonably be expected to lead to, an Acquisition Proposal;
(ii) solicit, initiate, encourage, enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person person any non-public information or afford any person other than the Parent or the Company, as applicable, access to such party’s property, books or records (except pursuant to a request by a Governmental Authority) in connection with any offers, inquiries or the making of any proposal or offer that is seeking to make constitutes, or has made an Acquisition Proposal or any indication of interest that would could reasonably be expected to lead to an to, any Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its SubsidiariesProposal;
(iii) enter into take any letter action to make the provisions of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction any takeover statute inapplicable to any transactions contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))Proposal; or
(iv) terminate, amend, waive resolve or fail publicly propose to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person the foregoing described in clauses (other than the Parenti) through (iii). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 7.1(c), prior to receipt of the Company Parent Shareholder Approval, the Parent may (A) furnish non-public information with respect to the Company Parent and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such bona fide, written Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Parent Board shall have determined has concluded in good faith (faith, after consultation with outside legal counselcounsel and its financial advisors, constitutes or would reasonably be expected to lead to a Superior Proposal from the Person or group submitting such bona fide, written Acquisition Proposal; provided that (x) the Parent receives from the Qualified Person an executed confidentiality agreement on terms not less favorable to the Parent than the Confidentiality Agreement and containing additional provisions that expressly permit such party to comply with this terms of this Section 7.1 (a copy of which shall be provided to the failure to take such action would be inconsistent with its fiduciary obligations under applicable lawCompany), (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable Parent has not otherwise breached this Section 7.1 with respect to such Acquisition Proposal or the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) person making such Acquisition Proposal, and (z) the Parent Board has determined that taking such actions would be required to prevent a breach of its fiduciary duties under applicable Law. The Parent shall notify the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with prior to furnishing any information to or entering into any discussions or negotiations as provided in this Section 7.1(a). It is understood and agreed that any violation of the restrictions in this Section 7.1 (or action that, if taken by the Parent or the Company, as applicable, would constitute such Person, a violation) by any Representatives of the Parent or the Company furnishes such information shall be deemed to be a breach of this Section 7.1 by the Parent (to or the extent such information has not been previously furnished or made available by the Company to the Parent)Company, as applicable.
Appears in 1 contract
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company that it shall cause instruct its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives of any Person, collectively referred to as “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly, or announce any public intention to:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, inquiry or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition ProposalProposal (as defined below);
(ii) enter intoengage in, continue continue, knowingly facilitate or otherwise participate or engage in any discussions or negotiations regarding regarding, provide or make available any Acquisition Proposal non-public information or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish data to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its SubsidiariesPerson, or afford any Person with access to the business, employees, officers, contracts, properties, assetsassets or books and records, books in each case where such Person has made, whether orally (to any director, senior executive officer, investment banker or records legal advisor of the Company Company) or in writing, or expressly indicated an intention to make, any of its SubsidiariesAcquisition Proposal, or otherwise in connection with an Acquisition Proposal;
(iii) enter into grant any letter of intentwaiver, memorandum of understandingamendment or release under any standstill, agreement in principle, acquisition agreement, merger agreement confidentiality or similar agreement providing for or Takeover Statute (and the consummation Company shall promptly take all action necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of a transaction contemplated by any Acquisition Proposal such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each confidentiality, standstill or similar agreement);
(iv) otherwise knowingly facilitate any indication of interest that would reasonably be expected effort or attempt to lead to make an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in provided that the circumstances referred to in Section 6.1(a)Company and its Representatives may ascertain facts from the Person making such Acquisition Proposal about such Person and its Representatives for the purpose of the Company Board or any committee thereof informing itself about such Acquisition Proposal and the Person that made it); or
(ivv) terminateresolve, amendendorse, waive recommend, agree or fail propose to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking do any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)foregoing.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.16.1(a), until the Specified Time▇▇▇▇▇▇ shall not, neither the Company nor shall it authorize or permit any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its their respective directors, officers, employees, investment bankers, financial advisors, attorneys, accountants or other Representatives advisors, agents or representatives (such directors, officers, employees, investment bankers, financial advisors, attorneys, accountants, other advisors, agents and representatives, collectively, “Representatives”) to, directly or indirectly:
(iA) Solicitsolicit, initiate, encourage or knowingly encouragetake any other action designed to, or induce which would reasonably be expected to, facilitate, any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead toto or result in, any Acquisition Proposal;, including amending or granting any waiver or release under any standstill or similar agreement with respect to any ▇▇▇▇▇▇ Common Stock; or
(iiB) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, furnish to any Acquisition Proposal person any information with respect to, assist or participate in any indication of interest effort or attempt by any person with respect to, or otherwise cooperate in any way with respect to, any proposal or offer that constitutes, or would reasonably be expected to lead to an or result in, any Acquisition Proposal. Notwithstanding the foregoing, prior to the approval of the ▇▇▇▇▇▇ Voting Proposal at the ▇▇▇▇▇▇ Meeting (the “Specified ▇▇▇▇▇▇ Time”), ▇▇▇▇▇▇ may, to the extent required by the fiduciary obligations of the ▇▇▇▇▇▇ Board, as determined in good faith by the ▇▇▇▇▇▇ Board after consultation with outside counsel and the ▇▇▇▇▇▇ Financial Advisor (or furnish another financial advisor of nationally recognized reputation), in response to any Person that is seeking to make or has made an Acquisition Proposal that did not result from a breach by ▇▇▇▇▇▇ of this Section 6.1(a), and that the ▇▇▇▇▇▇ Board determines in good faith constitutes, or any indication of interest that would reasonably be expected to lead result in, a Superior Proposal, and subject to an Acquisition Proposal any information relating to the Company or any of its Subsidiariescompliance with Section 6.1(a)(iii), or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (Ax) furnish information with respect to ▇▇▇▇▇▇ to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any person making such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken and its Representatives pursuant to the foregoing clauses (A), (B) or (C), (1) none a customary confidentiality agreement not less restrictive of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company other party than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions provided, that would prevent all such information has previously been provided to Galileo or restrict is provided to Galileo prior to or contemporaneously with the Company or its Representatives from providing any information time it is provided to the Parent to which the Parent would be entitled under any provision of this Agreementsuch person) and (zy) participate in discussions or negotiations with such person and its Representatives regarding such Acquisition Proposal. Without limiting the Company shall have given the Parent written notice foregoing, it is agreed that any violation of the Company’s determination that restrictions set forth in this Section 6.1(a)(i) or the taking of any actions inconsistent with the restrictions set forth in this Section 6.1(a)(i) by any Representative or Subsidiary of ▇▇▇▇▇▇, whether or not such Person Representative is purporting to act on behalf of ▇▇▇▇▇▇ or otherwise, shall be deemed to be a Qualified Person and (3breach of this Section 6.1(a)(i) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)▇▇▇▇▇▇.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until during the Specified Time, neither Pre-Closing Period the Company shall not, nor shall it authorize or permit any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and it shall direct its and their respective directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, initiate or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or person any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation purpose of a transaction contemplated by encouraging or facilitating, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)Proposal. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the adoption of this Agreement at the Company may Meeting (Athe “Specified Time”), the Company may, in response to an Table of Contents Acquisition Proposal that did not result from a material breach by the Company of this Section 6.1 and subject to compliance with Section 6.1(c), (x) furnish non-public information with respect to the Company and its Subsidiaries to any Qualified Person person (and the Representatives of such person) making an Acquisition Proposal that the Company Board or any committee thereof determines in good faith (after consultation with outside legal counsel and its financial advisors) is, or would reasonably be expected to lead to, a Superior Proposal (such person, a “Qualified Person”), or pursuant to a confidentiality agreement not materially less restrictive with respect to the confidentiality obligations of the Qualified Person than the Confidentiality Agreement, (By) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (Cz) amend, or grant a waiver or release under, any standstill or similar agreement; providedagreement with respect to any Company Common Stock with any Qualified Person. Without limiting the foregoing, however, it is agreed that any violation of the restrictions set forth in the case of this Section 6.1(a) by any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none Representative of the Company or any of its Subsidiaries acting on behalf of the Company shall have breached or violated in any material respect the terms be deemed to be a breach of this Section 6.1 in connection with such Qualified Person, (26.1(a) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of by the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 1 contract
Sources: Merger Agreement (Palomar Medical Technologies Inc)
No Solicitation or Negotiation. Except as set forth in expressly permitted by this Section 6.16.2 and except as may relate to any Person, until the Specified Time, neither group of Persons or group that includes any Person or group of Persons from whom the Company nor has received during the Go-Shop Period a written Acquisition Proposal that the Board of Directors of the Company or any committee thereof believes in good faith (after consultation with its financial advisor) could reasonably be expected to result in a Superior Proposal (any such Person or group of Persons, an "Excluded Party"), the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its ' other Representatives to, directly or indirectly:
(i) Solicitat 12:00 a.m. on the 35th calendar day after the date of this Agreement (the "No-Shop Period Start Date") immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, not (A) initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposalproposal or offer that constitutes an Acquisition Proposal, offer (B) engage in, continue or indication of interest that constitutesotherwise participate in any discussions or negotiations regarding, or would reasonably be expected provide any non-public information or data concerning the Company or its Subsidiaries to lead any Person relating to, any Acquisition Proposal;
, (ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iiiC) enter into any letter of intent, memorandum of understanding, agreement or agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by principle with respect to any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a6.2(a) entered into in the circumstances referred to in or Section 6.1(a6.2(c)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (BD) participate otherwise knowingly facilitate any effort or engage in discussions or negotiations (including solicitation of revised attempt to make an Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Proposal.
Appears in 1 contract
Sources: Merger Agreement (Nbty Inc)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in permitted by this Section 6.1, until the Specified Time4.02, neither the Company it nor any of its Subsidiaries nor any of the officers, directors and employees of it or its Subsidiaries or any of its or its Subsidiaries’ investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) retained by the Company or its Subsidiaries in connection with the Merger or the other transactions contemplated hereby (collectively such Representatives, the “Company Transaction Representatives”) shall, and the Company it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ directors and officers Representatives retained by the Company or its Subsidiaries other than in connection with the Merger or the other transactions contemplated hereby (collectively such Representatives, the “Other Company Representatives”), in each case, not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
, (i) Solicit, initiate, solicit or knowingly encouragetake any action to facilitate, encourage or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding solicit any Acquisition Proposal or the making of any indication of interest proposal that would reasonably be expected to lead to an Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish or provide any non-public information to any Person that is seeking to make or has made an in connection with, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort relating to an Acquisition Proposal by, any Person that is seeking to make, or has made, an Acquisition Proposal, (iii) except as required by applicable Law, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (iv) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition merger agreement, merger acquisition agreement or other similar agreement providing for relating to an Acquisition Proposal. In furtherance of the consummation of a transaction contemplated foregoing, except as permitted by this Section 4.02, the Company shall and shall cause its Subsidiaries and its and their Company Transaction Representatives to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Other Company Representatives to, immediately cease any solicitation, discussions, or negotiations with any Person (other than Parent, Parent’s Affiliates and their respective Representatives) with respect to an Acquisition Proposal or any indication of interest other proposal that would reasonably be expected to lead to an Acquisition Proposal that existed on or prior to the date hereof. The Company shall promptly request the return or destruction of all non-public information furnished by or on its behalf to any Person and its Representatives (other than a confidentiality agreement referred Parent, Parent’s Affiliates and their respective Representatives) with respect to in Section 6.1(a) entered into in any Acquisition Proposal prior to the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce date hereof. It is understood that any rights under any “standstill” or other similar agreement between violation of the restrictions on the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to Section 4.02 by any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none Subsidiary of the Company or any of its Subsidiaries Company Transaction Representative shall have breached or violated in any material respect the terms be deemed a breach of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of 4.02 by the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 1 contract
Sources: Merger Agreement (Sparton Corp)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Effective Time, neither the each of Merger Partner, Public Company nor any of its and their respective Subsidiaries shallshall not, and the each of Merger Partner and Public Company shall use reasonable best efforts to cause its their respective directors, officers, members, employees, agents, attorneys, consultants, contractors, accountants, financial advisors and its Subsidiaries’ directors and officers other authorized representatives (“Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, seek or initiate or knowingly encouragetake any action to facilitate or encourage any offers, or induce any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person person any non-public information or afford any person other than Public Company or Merger Partner, as applicable, access to such party’s property, books or records (except pursuant to a request by a Governmental Entity) in connection with any offers, inquiries or the making of any proposal or offer that is seeking to make constitutes, or has made an Acquisition Proposal or any indication of interest that would could reasonably be expected to lead to an to, any Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its SubsidiariesProposal;
(iii) enter into take any letter action to make the provisions of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction any takeover statute inapplicable to any transactions contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))Proposal; or
(iv) terminate, amend, waive or fail publicly propose to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person the foregoing described in clauses (other than the Parenti) through (iii). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 6.1(c), prior to the Specified Time, each of Public Company and Merger Partner may (A) furnish non-public information with respect to the Public Company and its Subsidiaries or Merger Partner and its Subsidiaries, as the case may be, to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementProposal; provided, however, (x) that either Merger Partner or Public Company (as applicable) receives from the Qualified Person an executed confidentiality agreement on the terms not less restrictive than exist in the case of any action taken pursuant Confidentiality Agreement and continuing additional provisions that expressly permit such party to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the comply with this terms of this Section 6.1 in connection with such Qualified Person(a copy of which shall be provided to the other party), (2y) prior the party seeking to taking any make use of the actions set forth in clause (A) or (B) this proviso has not otherwise materially breached this Section 6.1 with respect to a Qualified Personsuch Acquisition Proposal or the person making such Acquisition Proposal, and (xz) the Merger Partner Board or Public Company Board shall have (as applicable) has determined in good faith (after consultation with outside legal counsel) that the failure to take such action actions would reasonably be expected to be inconsistent with its fiduciary obligations duties under applicable lawLaw. It is understood and agreed that any violation of the restrictions in this Section 6.1 (or action that, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the if taken by Public Company or its Merger Partner, as applicable, would constitute such a violation) by any Representatives from providing any information of Public Company or Merger Partner shall be deemed to the Parent to which the Parent would be entitled under any provision a breach of this Agreement) and (z) the Section 6.1 by Public Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Personor Merger Partner, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)as applicable.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth expressly permitted in this Section 6.17.1, until the Specified Time, neither the Company shall not, nor shall it authorize or permit any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its or their directors, officers, employees, investment bankers, attorneys, accountants or other Representatives toadvisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to directly or indirectly:
(i) Solicitsolicit, initiate, encourage or knowingly encourage, or induce take any other action to facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal, including without limitation, amending or granting any waiver or release under any standstill or similar agreement with respect to any Shares;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company with respect to, assist or participate in any of its Subsidiarieseffort or attempt by any Person with respect to, or afford access to the businessotherwise cooperate in any way with, properties, assets, books or records of the Company or any of its Subsidiaries;Acquisition Proposal; or
(iii) enter into make or authorize any letter statement, recommendation or solicitation in support of intentany Acquisition Proposal. The Company shall use its reasonable best efforts to take the necessary steps promptly to inform the Persons described in the first sentence of this Section 7.1(a) of the obligations undertaken under this Section. Notwithstanding the foregoing, memorandum of understanding, agreement nothing contained in principle, acquisition agreement, merger agreement this Agreement shall prevent the Company or the Company Board from (i) taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar agreement providing for communication to shareholders in connection with the consummation making or amendment of a transaction contemplated by tender offer or exchange offer) or from making any Acquisition Proposal or any indication of interest that would reasonably be expected legally required disclosure to lead shareholders with regard to an Acquisition Proposal (other than provided that neither the Company nor its Company Board may recommend any Acquisition Proposal unless permitted by Section 7.1(b) below and the Company may not fail to make or withdraw, modify or change in a manner adverse to the Buyer all or any portion of the Company Board Recommendation unless permitted by Section 7.5 (in which case the Buyer shall have the right to terminate this Agreement as set forth in Section 7.1(b)(ii)), and provided further that, notwithstanding anything herein to the contrary, any “stop-look-and-listen” communication by the Company or the Company Board to the shareholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act shall not be considered a failure to make, or a withdrawal, modification or change in any manner adverse to the Buyer of, all or a portion of the Company Board Recommendation) or (ii) prior to the adoption of this Agreement by the Company’s shareholders in accordance with this Agreement, (A) providing access to its properties, books and records and providing information or data in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company Board receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement (except for such changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement and it being understood that the Company may enter into a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive without a standstill provision or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect a standstill provision less favorable to the Company and its Subsidiaries to any Qualified Person (and if it waives or similarly modifies the Representatives of such Qualified Personstandstill provision in the Confidentiality Agreement), or (B) participate engaging in any negotiations or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (who has made an unsolicited bona fide written Acquisition Proposal, if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) extent that prior to taking any of the actions set forth in clause clauses (A) or (B) with respect to a Qualified Personof clause (ii), (x) the Company Board shall have determined in good faith (faith, after consultation with its outside legal counsel) counsel and financial advisors, that the failure to take such action would be inconsistent is necessary in order for the Company Board to comply with its fiduciary obligations duties under applicable lawLaw and that such Acquisition Proposal will, or would reasonably be expected to, result in, a Superior Proposal, and (y) the Company shall have entered into a confidentiality agreement informed the terms of which are Buyer promptly following (and in no less favorable with respect to the Company event later than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z24 hours after) the Company shall have given the Parent written notice taking by it of the Company’s determination that any such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)action.
Appears in 1 contract
No Solicitation or Negotiation. Except (a) The Company, its subsidiaries and other affiliates (as set forth in this Section 6.1reasonably determined by the Company) and their respective officers and other employees with managerial responsibilities, until directors, representatives (including the Specified Time, neither the Company nor Financial Advisor or any of its Subsidiaries shall, other investment banker and the Company any attorneys and accountants) and agents shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, or knowingly encourage, or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in immediately cease any discussions or negotiations regarding with any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish other persons with respect to any Person Third Party Acquisition. The Company also agrees promptly to request each person that is seeking to make has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or has made an Acquisition Proposal assets or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to otherwise) the Company or any of its Subsidiariessubsidiaries, if any, to return all confidential information heretofore furnished to such person by or afford access to the business, properties, assets, books or records on behalf of the Company or any of its Subsidiaries;
subsidiaries. Neither the Company nor any of its subsidiaries and other affiliates shall, nor shall the Company authorize or permit any of its or their respective officers, directors, employees, representatives or agents to, directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with or provide any information to any person or group (iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any other than Parent and Acquisition Proposal or any indication designees of interest Parent and Acquisition) concerning any Third Party Acquisition; provided, however,that would reasonably be expected if the Board of Directors of the Company determines in good faith, after consultation with legal counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's stockholders under the NJBCA, the Company may, in response to a proposal or offer for a Third Party Acquisition that was not solicited and that the Board of Directors of the Company determines, based on consultation with the Company Financial Advisor, is from a Third Party that is capable of consummating a Superior Proposal and only for so long as the Board of Directors so determines that its actions are likely to lead to an Acquisition Proposal a Superior Proposal, (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (Ai) furnish information only of the type and scope with respect to the Company and its Subsidiaries that the Company provided to Parent prior to the date hereof to any Qualified Person such person pursuant to a customary confidentiality agreement as was executed by Parent prior to the execution of this Agreement and (and the Representatives of such Qualified Person), or (Bii) participate in the discussions and negotiations regarding such proposal or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementoffer; provided, howeverfurther, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries nothing herein shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) prevent the Company Board shall have determined in good faith (after consultation from taking and disclosing to the Company's stockholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with outside legal counsel) that the failure regard to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the any tender or exchange offer. The Company shall have entered into a confidentiality agreement promptly (and in any event within one business day after becoming aware thereof) (i) notify Parent in the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of event the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 1 contract
Sources: Merger Agreement (Intel Corp)
No Solicitation or Negotiation. Except as set forth in otherwise expressly provided by this Section 6.15.4 and subject to Section 5.4(d) and Section 5.4(g), the Company agrees that, from the Go-Shop Period End Time until the Specified Timeearlier of the Company Merger Effective Time and the termination of this Agreement in accordance with Article VII, and subject to the other provisions of this Section 5.4, neither the Company, any of the Company Subsidiaries, nor any of its Subsidiaries their respective directors, officers or employees, shall, and the Company shall cause its and its the Company Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives not to, directly or indirectly:
(i) Solicit, initiate, or solicit, knowingly encourage, knowingly induce or induce knowingly facilitate any inquiries or discussion regarding, or the making, submission or announcement making of any proposalinquiry, offer or request, indication of interest interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii) engage in, enter into, continue or otherwise participate or engage in any discussions (other than informing any Person of the provisions contained in this Section 5.4(b)) or negotiations regarding regarding, or provide any information or data to any Person with respect to, or otherwise knowingly cooperate in any way with, or knowingly facilitate in any way any effort by, any Person in connection with, any Acquisition Proposal or any inquiry, request, indication of interest interest, proposal or offer that would could reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction;
(iv) approve or recommend an Acquisition Proposal, or declare advisable or execute or enter into any confidentiality agreement, letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, collaboration agreement or similar other agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal with respect to, or any indication of interest that would is intended or could reasonably be expected to lead to to, an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) an Acceptable Confidentiality Agreement entered into in accordance with Section 5.4(a)) or requiring or having the circumstances referred effect of requiring the Company to in Section 6.1(a)abandon, terminate or breach its obligations hereunder or fail to consummate the Mergers or the other transactions contemplated by this Agreement (an “Alternative Acquisition Agreement”); or
(ivv) terminate, amend, waive agree to or fail propose publicly to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and the foregoing. Without limiting the foregoing, it is agreed that any Person (other than violation of the Parent). Notwithstanding the foregoing or anything to the contrary restrictions set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to preceding sentence by any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries Company Subsidiary or their respective Representatives shall have breached or violated in any material respect the terms be deemed to be a breach of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of 5.4 by the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 1 contract
Sources: Merger Agreement (InfraREIT, Inc.)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the The Company nor any of its Subsidiaries shallagrees that it shall not, and the Company it shall cause its and its Subsidiaries’ directors and officers Subsidiaries not to, and it shall use its commercially reasonable efforts to cause their Representatives not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit, knowingly encourage or otherwise knowingly encourage, or induce facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, or provide any non-public information or data to any Person in connection with any Acquisition Proposal or otherwise knowingly facilitate any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, effort or furnish to any Person that is seeking attempt to make or implement any Acquisition Proposal. Notwithstanding anything in the foregoing to the contrary, prior to the time, but not after, this Agreement is adopted by the stockholders of the Company at the Company Meeting, the Company may: (A) provide information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal or any indication providing for the acquisition of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to more than (i) 35% of the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records assets (on a consolidated basis) of the Company or any (ii) more than 35% of its Subsidiaries;
(iii) enter into any letter the total voting power of intent, memorandum the equity securities of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation Company if the Company Board of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to Directors receives from the Person so requesting such information an Acquisition Proposal (other than a executed confidentiality agreement referred on terms substantially similar to in Section 6.1(a) entered into those contained in the circumstances referred Confidentiality Agreement; provided, however, that the Company shall simultaneously provide or make available to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce Parent any rights under any “standstill” or other similar agreement between material non-public information concerning the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything that is provided to the contrary set forth in this AgreementPerson making such Acquisition Proposal which was not previously provided or made available to Parent, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), Affiliates or Representatives; or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (who has made such an unsolicited bona fide written Acquisition Proposal, if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A)extent that, (Bx) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with each such Qualified Person, (2) prior case referred to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personabove, (x) the Company Board shall have determined of Directors determines in good faith (after consultation with outside legal counsel) counsel that the failure to take such action would is likely to be inconsistent with its their fiduciary obligations duties under applicable lawLaw, and (y) in such case referred to in clause (B) above, if the Company shall have entered into a confidentiality agreement Board of Directors has determined in good faith based on the terms of which are no less favorable information then available and after consultation with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) financial and (z) the Company shall have given the Parent written notice of the Company’s determination legal advisors that such Person Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, The Company agrees that neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company that it shall use its commercially reasonable efforts to instruct and cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (as defined below); or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating Proposal. Notwithstanding anything in the foregoing to the Company or any of its Subsidiariescontrary, or afford access prior to the business, properties, assets, books or records of obtaining the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this AgreementRequisite Vote, the Company may (A) furnish provide information with respect in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal providing for the acquisition of more than 50% of the assets (on a consolidated basis) or voting power of the equity securities of the Company and its Subsidiaries to any Qualified if the board of directors receives from the Person so requesting such information an executed confidentiality agreement on terms at least as protective for the benefit of the Company as those contained in the Confidentiality Agreement (and the Representatives of such Qualified Personas defined in Section 9.7), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such an unsolicited bona fide written Acquisition Proposal or and/or (C) amendafter having complied with the requirements of this Section 6.2, approve, adopt, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill adopt, recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Acquisition Proposal, however, that in the case of any action taken pursuant if and only to the foregoing clauses extent that, (x) in each such case referred to in clause (A), (B) or (C)) above, (1) none the board of directors of the Company or any of its Subsidiaries shall have breached or violated determines in any material respect good faith after consultation with outside legal counsel that the terms of this Section 6.1 failure to take such action will be reasonably likely to result in connection with such Qualified Person, (2) prior to taking any a breach of the actions set forth directors respective fiduciary duties under applicable Law; (y) in each such case referred to in clause (A) or (B) with respect to a Qualified Person), (x) if the board of directors of the Company Board shall have has determined in good faith based on the information then available and after consultation with its financial advisor that such Acquisition Proposal either constitutes a Superior Proposal (as defined below) or is reasonably likely to result in a Superior Proposal; and (z) in the case referred to in clause (C) above, the board of directors of the Company determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Acquisition Proposal is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. (a) Except as set forth for (i) motions and related pleadings and documents to be filed by the Seller with the U.S. Bankruptcy Court in this connection with the Seller's efforts to cause the U.S. Bankruptcy Court to enter the Bidding Procedures Order, the Approval Order and any Section 6.1365 Order and (ii) any and all actions that may be taken by or on behalf of the Seller in furtherance of the foregoing, from the date hereof until the Specified Timemoment the Bidding Procedures Order has been entered by the U.S. Bankruptcy Court, neither the Company Seller shall not, nor shall the Seller authorize or permit any of its Subsidiaries shallor any officer, and director, employee, agent or representative of the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize Seller or knowingly permit any of its other Representatives toSubsidiaries (including, directly without limitation, any investment banker, attorney or indirectly:
accountant retained by the Seller or any of its Subsidiaries) to (i) Solicitsolicit, initiate, encourage or knowingly encourageaccept any inquiries, proposals or induce any inquiries or the making, submission or announcement offers in respect of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
, (ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any other Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiarieswith respect to, or afford access otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to the business, properties, assets, books do or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by seek any Acquisition Proposal and, the Seller shall immediately cease and cause to be terminated all existing discussions or negotiations with any indication parties conducted heretofore with respect to any of interest that would reasonably be expected to lead to an the foregoing. The Seller shall notify Purchaser promptly of any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and amendment in respect thereof) made by any third party or any inquiry or contact with any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect thereto, that is made and shall, in any such notice to Purchaser, indicate in reasonable detail the Company and its Subsidiaries to any Qualified identity of the Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any making such Acquisition Proposal or (C) amend, related inquiry or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect contact and the terms and conditions of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of Acquisition Proposal or related inquiry or contact until the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) moment that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have Bidding Procedures Order has been entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).U.S.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Asia Global Crossing LTD)
No Solicitation or Negotiation. Except as set forth in this Section 6.16.01, until the Specified Effective Time, neither the each of Merger Partner, Public Company nor any of its and their respective Subsidiaries shallshall not, and the each of Merger Partner and Public Company shall use reasonable best efforts to cause its their respective directors, officers, members, employees, agents, attorneys, consultants, contractors, accountants, financial advisors and its Subsidiaries’ directors and officers other authorized representatives ("Representatives") not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, seek or initiate or knowingly encouragetake any action to facilitate or encourage any offers, or induce any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person person any non-public information or afford any person other than Public Company or Merger Partner, as applicable, access to such party's property, books or records (except pursuant to a request by a Governmental Entity) in connection with any offers, inquiries or the making of any proposal or offer that is seeking to make constitutes, or has made an Acquisition Proposal or any indication of interest that would could reasonably be expected to lead to an to, any Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its SubsidiariesProposal;
(iii) enter into take any letter action to make the provisions of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction any takeover statute inapplicable to any transactions contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))Proposal; or
(iv) terminate, amend, waive or fail publicly propose to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person the foregoing described in clauses (other than the Parenti) through (iii). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 6.01(c), prior to the Specified Time, each of Public Company and Merger Partner may (A) furnish non-public information with respect to the Public Company and its Subsidiaries or Merger Partner and its Subsidiaries, as the case may be, to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementProposal; provided, however, (x) that either Merger Partner or Public Company (as applicable) receives from the Qualified Person an executed confidentiality agreement on the terms not less restrictive than exist in the case of any action taken pursuant Confidentiality Agreement and continuing additional provisions that expressly permit such party to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the comply with this terms of this Section 6.1 in connection with such Qualified Person6.01 (a copy of which shall be provided to the other party), (2y) prior the party seeking to taking any make use of the actions set forth in clause (A) or (B) this proviso has not otherwise materially breached this Section 6.01 with respect to a Qualified Personsuch Acquisition Proposal or the person making such Acquisition Proposal, and (xz) the Merger Partner Board or Public Company Board shall have (as applicable) has determined in good faith (after consultation with outside legal counsel) that the failure to take such action actions would reasonably be expected to be inconsistent with its fiduciary obligations duties under applicable lawLaw. It is understood and agreed that any violation of the restrictions in this Section 6.01 (or action that, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the if taken by Public Company or its Merger Partner, as applicable, would constitute such a violation) by any Representatives from providing any information of Public Company or Merger Partner shall be deemed to the Parent to which the Parent would be entitled under any provision a breach of this Agreement) and (z) the Section 6.01 by Public Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Personor Merger Partner, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)as applicable.
Appears in 1 contract
Sources: Merger Agreement (Sphere 3D Corp)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the termination of this Agreement in accordance with the terms hereof (the “Specified Time”), neither the Company nor any of its Subsidiaries shall, and the Company shall direct and use reasonable efforts to cause its directors, officers, employees, investment bankers, attorneys, accountants and its Subsidiaries’ directors other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and officers representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, knowingly encourage or knowingly encourage, or induce any inquiries or facilitate the making, submission or announcement making of any proposalinquiry, offer or indication of interest interest, proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, or furnish or make available to any Acquisition Proposal Person any non-public information for the purpose of encouraging or facilitating, any inquiry, indication of interest interest, proposal or offer that constitutes, or would reasonably be expected to lead to an to, any Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, in response to a written, bona fide Acquisition Proposal that did not result from a breach (other than an immaterial breach) of this Section 6.1, and subject to compliance with Section 6.1(c), the Company may may, so long as the Company Stockholder Approval has not yet been obtained, (A) furnish or make available information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person)) making an Acquisition Proposal that the Company Board determines in good faith (after consultation with outside counsel and its financial advisors) is, or could reasonably be expected to lead to, a Superior Proposal, pursuant to a confidentiality agreement not materially less restrictive of the other party than the Confidentiality Agreement, (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified such Person (and the its Representatives of such Qualified Person) regarding any such Acquisition Proposal or Proposal, (C) amend, or grant a waiver or release under, any standstill or similar agreement; agreement with respect to any Company Common Stock, (D) take any action to exempt any Person from the restrictions on “business combinations” contained in Section 203 of the DGCL or otherwise cause such restrictions not to apply and (E) amend the Company Rights Plan and take all other action necessary or appropriate so that any action taken in regard to an Acquisition Proposal does not and will not result in the ability of any Person to exercise any of the Company Rights under the Company Rights Plan or enable or require the Company Rights issued thereunder to separate from the shares of Company Common Stock to which they are attached or to be triggered or become exercisable or cease to be redeemable, provided, however, that in no case shall the case of Company take any action taken pursuant to the foregoing set forth in clauses (A), ) through (BE) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) sentence unless and until the Company Board shall have determined in good faith (faith, after consultation with outside legal counsel) , that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law; and provided further that in the case of clauses (C), (yD) and (E) the Acquisition Proposal shall be a Superior Proposal; and provided further, in every case, that the Company complies with each of the following: (1) the Company first shall have entered into a confidentiality agreement provided the terms of which are no less favorable Buyer with respect to the Company than the Confidentiality Agreement two (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement2) and (z) the Company shall have given the Parent Business Days advance written notice of the identity of such Person and all the material terms and conditions of such Acquisition Proposal and the Company’s determination that intention to take such Person is a Qualified Person action (specifying which action it intends to take), and (32) prior to or contemporaneously with furnishing or making available any such nonpublic information to such Person, the Company furnishes shall furnish such nonpublic information to the Parent Buyer (to the extent such information has not already been previously furnished or made available by the Company to the ParentBuyer).
Appears in 1 contract
Sources: Merger Agreement (Emc Corp)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the Company nor any of its Subsidiaries (a) The Seller shall, and the Company shall direct or cause its representatives to, immediately cease and its Subsidiaries’ directors and officers not tocause to be terminated any discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal. The Seller shall not, directly or indirectly, and shall instruct (and not authorize or knowingly permit revoke any of such instructions) its other Representatives representatives not to, directly or indirectly:
, (i) Solicitsolicit, initiate, negotiate, knowingly encourage or knowingly encouragefacilitate (including by way of furnishing non-public information) the submission of any Acquisition Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in any discussions or negotiations regarding, or induce furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making, submission or announcement making of any proposal, offer or indication of interest proposal that constitutes, or would may reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or Seller to any of its Subsidiaries;Person that has disclosed to the Seller that it is contemplating making an Acquisition Proposal.
(iiib) enter into Notwithstanding anything to the contrary in this Section 6.9, the Seller may, subject to the last sentence of Section 9.2 of this Agreement, participate in any letter discussions or negotiations with or furnish information to, any Person that has made an unsolicited Acquisition Proposal, that did not result from a breach of intentSection 6.9(a), memorandum of understandingand where the Seller has (i) determined, agreement in principleits good faith judgment (after consultation with its outside legal counsel and its financial advisors), acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any that such Acquisition Proposal constitutes, or any indication of interest that would may reasonably be expected to lead to, a Superior Proposal, and (ii) provided written notice to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any Buyer of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything intent to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation with, or furnish information to, such Person. The Seller shall notify the Buyer of revised any Acquisition Proposals) with any Qualified Person (and the Representatives Proposal it receives within one Business day after receipt of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in and shall include the case material terms and conditions of such Acquisition Proposal and the identity of the Person making such Acquisition Proposal. The Seller shall notify the Buyer of any action taken pursuant material modification to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection Acquisition Proposal with one Business Day after such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person modification is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)proposed.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until during the Specified Time, Pre-Closing Period neither the Company nor any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its directors, officers, employees, investment bankers, attorneys, accountants and other Representatives advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to, directly or indirectly:
(i) Solicitsolicit, initiate, propose or knowingly encourage, or induce encourage (including by providing non-public information) any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or person any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation purpose of a transaction contemplated by encouraging or facilitating, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)Proposal. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, until receipt of the Company may Shareholder Approval, the Company may, to the extent failure to do so would be inconsistent with the fiduciary obligations of the Company Board under applicable law, as determined in good faith by the Company Board after consultation with outside counsel, in response to a Superior Proposal or a bona fide, unsolicited written Acquisition Proposal made or received after the date of this Agreement that the Company Board determines in good faith after consultation with outside counsel and its financial advisor is reasonably likely to lead to a Superior Proposal, in each case that did not result from a breach by the Company of this Section 6.1, and subject to compliance with Section 6.1(c), (A) furnish information with respect to the Company to the person making such Acquisition Proposal and its Subsidiaries Representatives pursuant to any Qualified Person (a customary confidentiality agreement not materially less restrictive of the other party than the Confidentiality Agreement and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations with such person and its Representatives regarding any Acquisition Proposal (including solicitation of a revised Acquisition ProposalsProposal from such person) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 1 contract
Sources: Merger Agreement (Kronos Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Effective Time, neither the each of Merger Partner, Public Company nor any of its and their respective Subsidiaries shallshall not, and the each of Merger Partner and Public Company shall use reasonable best efforts to cause its their respective directors, officers, members, employees, agents, attorneys, consultants, contractors, accountants, financial advisors and its Subsidiaries’ directors and officers other authorized representatives (“Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicitsolicit, initiate, seek or initiate or knowingly encouragetake any action to facilitate or encourage any offers, or induce any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal, or engage, participate in, or knowingly facilitate, any discussions or negotiations regarding, or furnish any nonpublic information to any person in connection with any inquiries, proposals or offers that constitute or could reasonably be expected to lead to, an Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person person any non-public information or afford any person other than Public Company or Merger Partner, as applicable, access to such party’s property, books or records (except pursuant to a request by a Governmental Entity) in connection with any offers, inquiries or the making of any proposal or offer that is seeking to make constitutes, or has made an Acquisition Proposal or any indication of interest that would could reasonably be expected to lead to an to, any Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its SubsidiariesProposal;
(iii) enter into take any letter action to make the provisions of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction any takeover statute inapplicable to any transactions contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))Proposal; or
(iv) terminate, amend, waive or fail publicly propose to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person the foregoing described in clauses (other than the Parenti) through (iii). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 6.1(c), prior to the Specified Time, each of Public Company and Merger Partner may (A) furnish non-public information with respect to the Public Company and its Subsidiaries or Merger Partner and its Subsidiaries, as the case may be, to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementProposal; provided, however, (x) that either Merger Partner or Public Company (as applicable) receives from the Qualified Person an executed confidentiality agreement on the terms not less restrictive than exist in the case of any action taken pursuant Confidentiality Agreement and continuing additional provisions that expressly permit such party to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the comply with this terms of this Section 6.1 in connection with such Qualified Person, (2) prior a copy of which shall be provided to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable lawother party), (y) the Company shall have entered into a confidentiality agreement the terms party seeking to make use of which are no less favorable this proviso has not otherwise materially breached this Section 6.1 with respect to such Acquisition Proposal or the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) person making such Acquisition Proposal, and (z) the Merger Partner Board or Public Company shall have given the Parent written notice Board (as applicable) has determined that taking such actions would be required to prevent a breach of its fiduciary duties under applicable law. It is understood and agreed that any violation of the Company’s determination that restrictions in this Section 6.1 (or action that, if taken by Public Company or Merger Partner, as applicable, would constitute such Person is a Qualified Person and (3violation) contemporaneously with furnishing by any information Representatives of Public Company or Merger Partner shall be deemed to such Personbe a breach of this Section 6.1 by Public Company or Merger Partner, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)as applicable.
Appears in 1 contract
Sources: Merger Agreement (Arsanis, Inc.)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither it nor any of its Subsidiaries nor any of the Company nor officers and directors of it or any of its Subsidiaries shall, and the Company that it shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition ProposalProposal (as defined below);
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;Proposal; or
(iii) enter into otherwise knowingly facilitate any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement effort or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected attempt to lead to make an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into Proposal. Notwithstanding anything in the circumstances referred foregoing to in Section 6.1(a)); or
(iv) terminatethe contrary, amendprior to the time that, waive or fail to enforce any rights under any “standstill” or other similar agreement between but not after, the Requisite Company Vote is obtained, if the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth has otherwise complied in all material respects with this AgreementSection 6.2, the Company may (A) furnish provide information with respect in response to a request therefor by a Person (other than any Affiliate of the Company) who has made an unsolicited written Acquisition Proposal that the Company Board of Directors believes in good faith to be bona fide providing for the acquisition of more than 50% of the assets (on a consolidated basis) or total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not more favorable to such other Person than those contained in the Confidentiality Agreement (as defined in Section 9.7); and promptly discloses (and, if applicable, provides copies of) any such information to Parent to the Company and its Subsidiaries extent not previously provided to any Qualified Person (and the Representatives of such Qualified Person), or Parent; (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such an unsolicited bona fide written Acquisition Proposal of the type described in clause (A) above; or (C) amendafter having complied with Section 6.2(c), approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreementdeclare advisable (publicly or otherwise) such an Acquisition Proposal; provided, however, that (x) in the each such case of any action taken pursuant referred to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personabove, (x) the board of directors of the Company Board shall have has determined in good faith based on the information then available and (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal (as defined below) or is reasonably likely to result in a Superior Proposal; and (y) in the case referred to in clause (C) above, the board of directors of the Company determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Acquisition Proposal is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the Elected Officers and directors of it or its Subsidiaries shall, and the Company that it shall use its reasonable best efforts to cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, encourage or induce facilitate any inquiries or the making, submission or announcement making of any proposalinquiry, proposal or offer that constitutes or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would may reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(ivii) terminateengage in any discussions or negotiations regarding, amend, waive or fail provide any information or data to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)relating to, any Acquisition Proposal. Notwithstanding anything in the foregoing or anything to the contrary set forth in this Agreementcontrary, prior to the time, but not after, the Requisite Company Vote is obtained, the Company may (A) furnish provide information or data in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if (x) the Company receives from the Person so requesting such information an executed confidentiality agreement on terms that are no less favorable (including with respect to standstill provisions) than those contained in the confidentiality agreements signed by certain affiliates of Parent and (y) the Company and its Subsidiaries substantially concurrently provides to Parent any Qualified non-public information provided to such Person (and the Representatives of such Qualified Person), which was not previously provided to Parent; or (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (who has made such an unsolicited bona fide written Acquisition Proposal; if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A), (B) or (C)extent that, (1) none of the Company or any of its Subsidiaries shall have has not breached or violated in any material respect the terms of this Section 6.1 in connection 6.2 with respect to such Qualified PersonAcquisition Proposal, (2) prior to taking any of the actions set forth action described in clause (A) or (B) with respect to a Qualified Personabove, (x) the board of directors of the Company Board shall have determined determines in good faith (after consultation with outside legal counsel) counsel that the failure to take such action would be inconsistent with its the directors’ fiduciary obligations duties under applicable lawLaw, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information in each such case referred to such Personin clause (A) or (B) above, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by board of directors of the Company to has determined in good faith based on the Parent)information then available and after consultation with its financial advisor and legal counsel that either (i) such Acquisition Proposal constitutes a Superior Proposal or (ii) there is a reasonable likelihood that such Acquisition Proposal will result in a Superior Proposal.
Appears in 1 contract
Sources: Merger Agreement (Biomet Inc)
No Solicitation or Negotiation. Except Each of the Company and the Partnership agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.04, neither it nor any Subsidiary of the Company nor any of the officers and directors of it or any of its Subsidiaries shall, and the Company that it shall use its commercially reasonable efforts to instruct and cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers not toother advisors or representatives (such employees, investment bankers, attorneys, accountants and shall not authorize other advisors or knowingly permit any representatives of its other Representatives Subsidiaries, collectively, “Representatives”) not to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, or provide any non-public information or data to any Person relating to, any Acquisition Proposal; or
(iii) otherwise knowingly facilitate any such inquiry, proposal, offer, discussion or negotiations. Notwithstanding anything in the foregoing to the contrary, prior to the time, but not after, the Shareholder Approval is obtained, the Company may: (A) provide information in response to a request therefor by a Person with respect to a bona fide written Acquisition Proposal that was not solicited by the Company or any indication the Partnership after the date hereof, if the Company or the Partnership receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to the other party than those contained in the Confidentiality Agreement, it being understood that such confidentiality agreement need not prohibit the making, or amendment, of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such a bona fide written Acquisition Proposal Proposal, or (C) amendafter having complied with Section 6.04(c), approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Acquisition Proposal, howeverif and only to the extent that, that in the case of (x) prior to taking any action taken pursuant to the foregoing clauses described in clause (A), (B) or (C)) above, (1) none the Company Board determines in good faith after consultation with outside legal counsel that failure to take such action, in light of the Company or any of its Subsidiaries shall have breached or violated in any material respect Acquisition Proposal and the terms of this Section 6.1 Agreement, would reasonably be likely to be inconsistent with the directors’ duties to the Company’s shareholders under applicable Law, and (y) in connection with each such Qualified Person, (2) prior case referred to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personabove, (x) the Company Board shall have has determined in good faith based on the information then available and after consultation with its financial advisor that such Acquisition Proposal constitutes or would reasonably be expected to constitute or lead to a Superior Proposal; and (z) in the case referred to in clause (C) above, the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Acquisition Proposal is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
Sources: Merger Agreement (Equity Inns Inc)
No Solicitation or Negotiation. Except (i) The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company that it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(iA) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposalproposal or offer that constitutes an Acquisition Proposal;
(B) engage in, offer continue or indication of interest that constitutesotherwise participate in any discussions or negotiations regarding, or would reasonably be expected provide any non-public information or data to lead any Person relating to, any Acquisition Proposal, except to notify such Person of the existence of this Section 6.2;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iiiC) enter into any letter of intent, memorandum of understanding, agreement or agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by principle with respect to any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a6.2(a)(ii);
(D) grant any waiver, amendment or release under any confidentiality agreement entered into in connection with a potential Acquisition Proposal or fail to use reasonable efforts to enforce any confidentiality agreement entered into in connection with a potential Acquisition Proposal; it being agreed that any standstill provisions contained therein that restricted the circumstances referred ability of a third party to make a non-public Acquisition Proposal to the Company regarding a potential transaction between such third party and the Company shall be deemed waived in Section 6.1(a))accordance with the following paragraph; or
(ivE) terminateotherwise knowingly facilitate any effort or attempt by any Person to make an Acquisition Proposal. The Company and its Subsidiaries shall, amendand shall cause its and its Subsidiaries’ officers and directors to, waive and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, cease immediately any discussions or fail negotiations, if any, with any Person (other than Parent, Merger Sub and their respective Representatives) conducted prior to enforce the date of this Agreement with respect to any rights under Acquisition Proposal and shall promptly request that any “standstill” such Person in possession of confidential information about the Company that was furnished by or other similar on behalf of the Company return or destroy all such information in accordance with the terms of the confidentiality agreement with such Person. Notwithstanding the foregoing or anything in this Agreement to the contrary, each of the parties hereto hereby acknowledges and agrees that any provision included in a confidentiality agreement between the Company or any of its Subsidiaries and any Person (other than a third party in effect on the Parent). Notwithstanding date hereof that restricts the foregoing or anything ability of such third party to the contrary set forth in this Agreement, the Company may (A) furnish information with respect make a non-public Acquisition Proposal to the Company and its Subsidiaries to any Qualified Person (regarding a potential transaction between such third party and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of Company shall be deemed waived by the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision Subsidiary party thereto effective upon execution of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 1 contract
Sources: Merger Agreement (Jones Group Inc)
No Solicitation or Negotiation. Except as set forth in Subject to the final sentence of this Section 6.15.3(a), and subject to the terms of Section 5.3(b), from the date of this Agreement until the Specified earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, neither the Company nor any of and its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not tonot, and shall not instruct, authorize or knowingly permit any of its other their respective Representatives to, directly or indirectly:
, (i) Solicitsolicit, initiate, or knowingly encourage, propose or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest that constitutesof, or would knowingly encourage, facilitate or assist, any proposal or offer that constitutes or could reasonably be expected to lead to, any an Acquisition Proposal;
; (ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal (other than Parent, Merger Sub or any indication designees of interest that would reasonably be expected to lead to an Acquisition Proposal Parent or Merger Sub) any information relating to the Company or any of its Subsidiaries, Subsidiaries or afford to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) access to the business, properties, assets, books books, records or records personnel, of the Company or any of its Subsidiaries;
, in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage or knowingly facilitate, an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (or inquiries, proposals or offers that could reasonably be expected to lead to an Acquisition Proposal); (iv) approve, endorse or recommend an Acquisition Proposal; or (v) enter into any letter of intent, memorandum of understanding, agreement in principlemerger agreement, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead other Contract relating to an Acquisition Proposal (Transaction, other than an Acceptable Confidentiality Agreement under the circumstances described in Section 5.3(b) (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the following two sentences of this Section 5.3(a), and subject to the terms of Section 5.3(b), after the date of this Agreement, the Company shall request the prompt return or destruction of all non-public information concerning the Company Group theretofore furnished to any such Person with whom a confidentiality agreement referred to in Section 6.1(a) was entered into in connection with its consideration of an Acquisition Transaction at any time within the circumstances referred to in Section 6.1(a)); or
six (iv6) terminatemonth period immediately preceding the date hereof, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any and shall promptly cease and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to immediately cease, (A) any solicitations, discussions, communications or negotiations with any Person (other than the Parent). Notwithstanding Parties and their respective Representatives) in connection with an Acquisition Proposal by such Person, in each case that exists as of the foregoing or anything to the contrary set forth in date of this Agreement, (B) all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company may with respect to the Transactions, and (AC) furnish providing any further information with respect to the Company and its Subsidiaries or any Acquisition Proposal to any Qualified such Person (or its Representatives. From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Representatives Effective Time, the Company will be required to enforce, and will not be permitted to waive, terminate or modify, any provision of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, confidentiality agreement that in the case of any action taken pursuant prohibits or purports to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior prohibit a proposal being made to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have (or any committee thereof) (unless the Company Board (or any committee thereof) has determined in good faith (faith, after consultation with its financial advisors and outside legal counsel) , that the failure to take such action would reasonably likely to be inconsistent with its fiduciary obligations duties under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the ParentLaw).
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in (a) BCBSKS agrees that, between the date of this Section 6.1, until Agreement and the Specified Timeearlier of the Closing and the termination of this Agreement, neither the Company BCBSKS nor any of its Subsidiaries shallAffiliates, and the Company shall cause its and its Subsidiaries’ directors and officers not toor their respective officers, and shall not authorize directors, representatives or knowingly permit any of its other Representatives to, directly or indirectly:
agents will (i) Solicitsolicit, initiateinitiate or encourage any other proposals or offers from any Person relating to an Extraordinary Business Combination, or knowingly encourage, or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way, assist or participate in, facilitate or encourage any effort or attempt by any other Person relating to, an Extraordinary Business Combination, except that BCBSKS may state that it is seeking bound by this Agreement. BCBS immediately shall cease and cause to make be terminated all existing discussions and negotiations with any Persons conducted heretofore with respect to an Extraordinary Business Combination. Between the date of this Agreement and the earlier of the Closing and the termination of this Agreement, BCBSKS agrees not to, without the prior written consent of Purchaser, release any Person from, or has made an Acquisition Proposal waive any provision of, any confidentiality or standstill agreement to which BCBS is a party.
(b) Nothing contained in this Section 5.05 or in any other provision of this Agreement shall prohibit BCBSKS from (i) making any disclosure of information required by law (provided, BCBSKS uses commercially reasonable -------- efforts to obtain confidential treatment for such information), (ii) communicating any information to the Board of Directors of BCBSKS or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its SubsidiariesAffiliates, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person)regarding BCBS to, or (B) participate or engage participating in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release underwith, any standstill or similar third party (provided such party is subject to an executed confidentiality agreement; provided, however, ) that in makes an unsolicited proposal for an Extraordinary Business Combination if the case Board of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none Directors of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board BCBS shall have determined in its good faith (reasonable judgment, after consultation with its outside legal counsel) counsel and financial advisors, that the failure to take such action to determine if the unsolicited proposal for an Extraordinary Business Combination is a Superior Proposal would be inconsistent with its statutory or fiduciary obligations under applicable lawduties. For purposes of this Section 5.05(b), (y) receipt of a new proposal for an Extraordinary Business Combination after the Company date hereof, without any direct or indirect solicitation by BCBS or its representatives, from a third party that presented BCBS with a proposal for an Extraordinary Business Combination prior to the date hereof that was rejected by BCBS shall have entered into a confidentiality agreement be deemed to be an unsolicited proposal for an Extraordinary Business Combination. Notwithstanding anything contained in this Agreement to the contrary, neither BCBSKS nor its Board of Directors may terminate this Agreement except in accordance with the terms of which are no less favorable with respect to Article X. Any action by the Company than the Confidentiality Agreement (which confidentiality agreement Board of Directors of BCBSKS permitted by this Section 5.05 shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision constitute a breach of this AgreementAgreement by BCBSKS.
(c) BCBSKS shall notify Purchaser promptly (and in any event within forty- eight (z48) hours) if any proposal or offer is made, and shall, in any such notice to Purchaser, indicate in reasonable detail the Company shall have given the Parent written notice identity of the Company’s determination that Person making such Person is a Qualified Person proposal or offer and the material terms and conditions of such proposal or offer. BCBSKS will keep Purchaser reasonably informed of the status and details (3including amendments or proposed amendments) contemporaneously with furnishing of any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished proposal or made available by the Company to the Parent)offer.
Appears in 1 contract
Sources: Alliance Agreement (Anthem Inc)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, after the execution and the Company delivery of this Agreement, and that it shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (as defined below); or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;Proposal; or
(iii) enter into otherwise facilitate knowingly any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement effort or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected attempt to lead to make an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into Proposal. Notwithstanding anything in the circumstances referred foregoing to in Section 6.1(a)); or
(iv) terminatethe contrary, amendprior to the time, waive or fail to enforce any rights under any “standstill” or other similar agreement between but not after, the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this AgreementRequisite Vote is obtained, the Company may (A) furnish provide information with in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal providing for the acquisition of more than 50% of the assets (on a consolidated basis) or total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive in any material respect to the Company other party than those contained in the Confidentiality Agreement (as defined in Section 9.7); it being understood that such confidentiality agreement need not prohibit the making, or amendment, of an Acquisition Proposal; and its Subsidiaries promptly discloses (and, if applicable, provides copies of) any such information to any Qualified Person (and Parent to the Representatives of extent not previously provided to such Qualified Person), party; or (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (who has made such an unsolicited bona fide written Acquisition Proposal, if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) extent that prior to taking any of the actions set forth action described in clause (A) or (B) with respect to a Qualified Personabove, (x) the board of directors of the Company Board shall have has determined in good faith (based on the information then available and after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination financial advisor that such Person Acquisition Proposal either constitutes a Superior Proposal (as defined below) or is reasonably expected to result in a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
Sources: Merger Agreement (Hydril Co)
No Solicitation or Negotiation. Except as set forth in expressly permitted by this Section 6.1, until the Specified Time7.2, neither the Company nor any of its Subsidiaries shallnor any of the officers and directors of it or its Subsidiaries will, and the Company shall will instruct and use its reasonable best efforts to cause its and its Subsidiaries’ directors and officers not toemployees, investment bankers, attorneys, accountants, and shall other advisors or representatives (a Person’s directors, officers, employees, investment bankers, attorneys, accountants, and other advisors or representatives, collectively, “Representatives”) not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter intoengage in, continue or otherwise participate in or engage in knowingly facilitate any discussions or negotiations regarding regarding, or provide any Acquisition Proposal non-public information or data, or afford access to the properties and other assets of the Company and its Subsidiaries, to any indication of interest that Person relating to, in connection with, or would reasonably be expected to lead to an to, any Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) otherwise facilitate knowingly any effort or attempt to make an Acquisition Proposal; or
(iv) adopt or approve, or enter into any letter of intent, agreement in principle, memorandum of understanding, agreement in principleterm sheet, merger agreement, acquisition agreement, merger option agreement or similar any other agreement (other than an Acceptable Confidentiality Agreement) or instrument providing for the consummation of a transaction contemplated by or relating to any Acquisition Proposal or enter into any indication of interest agreement (or amend or modify any existing agreement) that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between prevent the Company or any of its Subsidiaries and Subsidiary or their respective representatives from complying with this Section 7.2 or amend or grant any Person (other than the Parent). Notwithstanding the foregoing waiver or anything to the contrary set forth in this Agreement, the Company may (A) furnish information release under any standstill or similar agreement with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Personan “Alternative Acquisition Agreement”), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company may amend or grant any of its Subsidiaries shall have breached waiver or violated release under any provision contained in any material respect standstill or similar agreement that would prohibit the terms of this Section 6.1 in connection other party thereto from communicating with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) Company with respect to a Qualified Person, (x) an Acquisition Proposal or submitting an Acquisition Proposal to the Company Board shall have determined if, and only if, the Company Board, or any duly authorized committee thereof, determines in good faith (after consultation with its outside legal counsel) counsel that the failure to take amend or grant any waiver or release under any such action standstill or similar agreement would be inconsistent with its fiduciary obligations the directors’ duties under applicable lawLaw. Notwithstanding anything in the foregoing to the contrary, (y) prior to the time, but not after, the Requisite Stockholder Vote is obtained, the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect and its Representatives may, in response to the Company than receipt of a written Acquisition Proposal that did not result from a breach of this Section 7.2 in any material respect, take the Confidentiality Agreement actions described in clause (which confidentiality agreement ii) above (and, for the avoidance of doubt, such actions shall not include any provisions that would prevent or restrict be a breach of clauses (i) and (iii) above) in response to a bona fide written Acquisition Proposal received by the Company or its Representatives from providing any information to after the Parent to which the Parent would be entitled under any provision date of this AgreementAgreement that is not withdrawn if (but only if): (A) the Company Board, or any duly authorized committee thereof, has determined in good faith based on the information then available and after consultation with its financial advisors and outside legal counsel that such Acquisition Proposal either constitutes a Superior Proposal or may reasonably be expected to result in a Superior Proposal, (B) the Company gives Parent written notice that the Company Board or any duly authorized committee thereof has made the determination contemplated by clause (A) above, such notice to include the information set forth in Section 7.2(e) and (zC) the Company shall have given furnishes non-public information or provides access to such Person or its Representatives only after such Person has executed a confidentiality agreement on terms relating to confidentiality that, taken as a whole, are not less restrictive to the Parent written notice of other party than those contained in the Company’s determination Confidentiality Agreement (an “Acceptable Confidentiality Agreement”); it being understood that such Person is a Qualified Person Acceptable Confidentiality Agreement need not prohibit the making, or amendment, of an Acquisition Proposal; and contemporaneously discloses (3and, if applicable, provides copies of) contemporaneously with furnishing any such non-public information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished disclosed or made available by the Company provided to the Parent).
Appears in 1 contract
No Solicitation or Negotiation. Except (a) The Company, its affiliates (as set forth in this Section 6.1reasonably determined by the Company) and their respective officers and other employees with managerial responsibilities, until directors, representatives (including the Specified Time, neither the Company nor Financial Advisor or any of its Subsidiaries shall, other investment banker and the Company any attorneys and accountants) and agents shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, or knowingly encourage, or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in immediately cease any discussions or negotiations regarding with any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish parties with respect to any Person Third Party Acquisition (as defined below). The Company also agrees promptly to request each person that is seeking to make has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or has made an Acquisition Proposal assets or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to otherwise) the Company or any of its Subsidiariessubsidiaries, if any, to return all confidential information heretofore furnished to such person by or afford access to the business, properties, assets, books or records on behalf of the Company or any of its Subsidiaries;
(iii) enter into subsidiaries. Neither the Company nor any letter of intentits affiliates shall, memorandum nor shall the Company authorize or permit any of understandingits or their respective officers, agreement directors, employees, representatives or agents to, directly or indirectly, encourage, solicit, participate in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by initiate discussions or negotiations with or provide any Acquisition Proposal non-public information to any person or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal group (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company Parent and Acquisition or any designees of its Subsidiaries Parent and Acquisition) concerning any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementThird Party Acquisition; provided, however, that in if the case Board of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none Directors of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined determines in good faith (faith, after consultation with outside legal counsel) , that the failure it is necessary to take such action would be inconsistent do so in order to comply with its fiduciary obligations duties to the Company's stockholders under applicable lawthe DGCL, the Company may, in response to a proposal or offer for a Third Party Acquisition which was not solicited and which the Board of Directors of the Company determines, based on consultation with the Company Financial Advisor, is from a Third Party that is capable of consummating a Superior Proposal and only for so long as the Board of Directors so determines that its actions are likely to lead to a Superior Proposal, (yi) furnish information only of the Company shall have entered into a confidentiality agreement the terms of which are no less favorable type and scope with respect to the Company than that the Confidentiality Agreement (which Company provided to Parent prior to the date hereof to any such person pursuant to a customary confidentiality agreement as was executed by Parent prior to the execution of this Agreement and (ii) participate in the discussions and negotiations regarding such proposal or offer; provided, further, that nothing herein shall not include any provisions that would prevent or restrict the Company or its Representatives Board from providing any information taking and disclosing to the Parent Company's stockholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to which the Parent would be entitled under any provision of this Agreement) and (z) the tender or exchange offer. The Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person promptly (and (3) contemporaneously with furnishing in any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parentevent within one business day after becoming aware thereof).
Appears in 1 contract
Sources: Merger Agreement (Intel Corp)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly, nor shall it authorize or permit their respective Representatives directly or indirectly to:
(i) Solicit, initiate, or solicit, knowingly encourage, induce or induce assist any inquiries or the making, submission submission, announcement or announcement consummation of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or provide or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information or data relating to the Company or any of its SubsidiariesSubsidiaries (other than to notify a Person of the provisions of this Section 6.2), or afford access to the business, properties, assets, books books, records or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none personnel of the Company or any of its Subsidiaries to any Person (other than Parent, Purchaser, or any of their respective Affiliates, designees or Representatives) that could reasonably be expected to initiate, solicit, encourage, induce or assist the making, submission or commencement of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal;
(iii) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal. Notwithstanding anything in the foregoing to the contrary, prior to the time that, but not after, the Requisite Company Vote is obtained, if the Company has not breached this Section 6.2, the Company may (A) provide information (which may include non-public information) in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not more favorable to such other Person than those contained in the Confidentiality Agreement and which shall have breached or violated in any material respect not prohibit the Company from complying with the terms of this Section 6.1 in connection with such Qualified Person6.2, (2) and prior to taking or concurrently delivers to Parent any such information to the extent not previously provided to Parent and (B) engage or participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal of the actions set forth type described in clause (A) or above, if and only to the extent that, prior to taking any action described in clauses (A) and (B) with respect to a Qualified Personabove, (x) the board of directors of the Company Board shall have has determined in good faith (after consultation with its outside financial advisors and outside legal counsel) that the (x) failure to take such action would reasonably be inconsistent with its expected to violate the directors’ fiduciary obligations duties under applicable law, Law and (y) based on the Company shall have entered into information then available, such Acquisition Proposal either constitutes a confidentiality agreement the terms of which are no less favorable with respect Superior Proposal or is reasonably likely to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is result in a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.14, until the Specified TimeHolder shall not, neither the Company nor any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not Holder authorize or knowingly permit any of its subsidiaries or any of its or its subsidiaries’ respective directors, officers, employees, affiliates [J▇ ▇▇▇▇▇▇ AGMT TO HAVE SAME LIST OF AFFILIATES AS IN STANDSTILL AGMT AND HAVE COMMUNICATIONS COVENANTS], investment bankers, attorneys, accountants or other Representatives advisors or representatives (collectively, “Holder Representatives”) to, directly or indirectly:
(i) Solicitsolicit, initiate, induce, encourage or knowingly encourage, or induce take any other action to facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition ProposalProposal (as defined below), including amending or granting any waiver or release under any standstill or similar agreement with respect to any Target Capital Stock (as defined in the Merger Agreement);
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, furnish to any person any nonpublic information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal; or
(iii) approve, endorse or recommend any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, intent or agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by relating to any Acquisition Proposal or Proposal. Holder agrees that any indication violation of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary restrictions set forth in this AgreementSection 4 by any Holder Representative or any affiliate of Holder or any Holder Representative, the Company may (A) furnish information with respect whether or not such Person is purporting to the Company and its Subsidiaries to any Qualified Person (and the Representatives act on behalf of such Qualified Person)Holder, or (B) participate or engage in discussions or negotiations (including solicitation shall constitute a breach by Holder of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementthis Section 4; provided, however, that actions taken by or on behalf of Target or its Board of Directors in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect accordance with the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Merger Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision deemed a violation of this Agreement) and (z) the Company shall have given the Parent written notice such restrictions by an affiliate of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Holder hereunder.
Appears in 1 contract
No Solicitation or Negotiation. Except (i) The Company agrees that, except as set forth in permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company that it shall instruct and use its commercially reasonable best efforts to cause its and its Subsidiaries’ directors officers, directors, employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such Persons, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
: (iA) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
; (iiB) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, or provide any non-public information or data to any Person relating to, any Acquisition Proposal Proposal; or (C) otherwise knowingly facilitate any indication of interest that would reasonably be expected effort or attempt to lead to make an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating .
(ii) Notwithstanding anything in the foregoing to the Company or any of its Subsidiariescontrary, or afford access prior to the businesstime, propertiesbut not after, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this AgreementShareholder Approval is obtained, the Company may (A) furnish provide non-public and other information with respect in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms that, if taken as a whole, are not materially less restrictive to the Company other party than those contained in the Confidentiality Agreement (except such confidentiality agreement need not contain any standstill, non-solicitation or no hire provisions) and its Subsidiaries promptly discloses (and, if applicable, provides copies of) any such information to any Qualified Person (and Partnership to the Representatives of such Qualified Person)extent not previously provided to Partnership, or (B) engage or otherwise participate or engage in any discussions or negotiations (including solicitation of revised regarding such an unsolicited bona fide written Acquisition Proposals) with any Qualified Person (Proposal, if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A)extent that, (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth action described in clause clauses (A) or (B) with respect to a Qualified Personof this Section 6.2(a)(ii), the Company Board determines in good faith that based on the information then available (x) the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel, such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal and (y) that the after consultation with its outside legal counsel, tax advisors and other outside advisors it deems relevant, a failure to take such action action, in light of the Acquisition Proposal and the terms of this Agreement, would reasonably be expected to be inconsistent with its the directors’ fiduciary obligations duties under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Applicable Law.
Appears in 1 contract
Sources: Securities Exchange Agreement (Arcadia Biosciences, Inc.)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.3, neither the Company it nor any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly, nor shall it authorize or permit their respective Representatives directly or indirectly to:
(i) Solicit, initiate, or solicit, knowingly encourage, induce or induce assist any inquiries or the making, submission submission, announcement or announcement consummation of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or provide or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information or data relating to the Company or any of its SubsidiariesSubsidiaries (other than to notify a Person of the provisions of this Section 6.3), or afford access to the business, properties, assets, books books, records or records personnel of the Company or any of its SubsidiariesSubsidiaries to any Person (other than Parent, Merger Sub, or any of their respective Affiliates, designees or Representatives) that could reasonably be expected to initiate, solicit, encourage, induce or assist the making, submission or commencement of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal;
(iii) approve, recommend or enter into into, any letter of intent, memorandum of understandingintent or similar document, agreement or commitment, or agreement in principleprinciple (whether written or oral, acquisition agreement, merger agreement binding or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead nonbinding) with respect to an Acquisition Proposal (other than a confidentiality agreement referred to in contemplated by this Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a6.3)); or;
(iv) terminateotherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal. Notwithstanding anything in the foregoing to the contrary, amendprior to the time that, waive or fail to enforce any rights under any “standstill” or other similar agreement between but not after, the Requisite Company Vote is obtained, if the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in has not breached this AgreementSection 6.3, the Company may (A) furnish provide information with respect (which may include non-public information) in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company and its Subsidiaries receives from the Person so requesting such information an executed confidentiality agreement on terms not more favorable to any Qualified such other Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that than those contained in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of Confidentiality Agreement and which shall not prohibit the Company or any of its Subsidiaries shall have breached or violated in any material respect from complying with the terms of this Section 6.1 in connection with such Qualified Person6.3, (2) and prior to taking or concurrently delivers to Parent any such information to the extent not previously provided to Parent and (B) engage or participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal of the actions set forth type described in clause (A) or above, if and only to the extent that, prior to taking any action described in clauses (A) and (B) with respect to a Qualified Personabove, (x) the board of directors of the Company Board shall have has determined in good faith (after consultation with its outside financial advisors and outside legal counsel) that the (x) failure to take such action would reasonably be expected to be inconsistent with its the directors’ fiduciary obligations duties under applicable law, Law and (y) based on the Company shall have entered into information then available, such Acquisition Proposal either constitutes a confidentiality agreement the terms of which are no less favorable with respect Superior Proposal or is reasonably expected to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information lead to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, The Company agrees that neither the Company it nor any of its Subsidiaries nor any of its or its Subsidiaries’ executive officers or directors shall, and the Company that it shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ directors non-executive officers, employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, facilitate or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, or provide any Acquisition Proposal non-public information or data to any indication of interest Person relating to, or otherwise knowingly facilitate, any proposal or offer that would constitutes, or could reasonably be expected to lead to, any Acquisition Proposal. Notwithstanding the foregoing, the Company may, on or prior to August 31, 2007, in response to an unsolicited bona fide written Acquisition Proposal that the Board of Directors of the Company has determined in good faith, after consultation with its outside legal counsel and financial advisor, is or is reasonably likely to result in a Superior Proposal, (A) provide public or non-public information or data in response to a request of the Person who has made such an unsolicited bona fide written Acquisition Proposal, provided that the Company (i) shall have entered into with the Person so requesting such information or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating data a confidentiality agreement containing terms at least as favorable to the Company or in all material respects as the terms contained in the Confidentiality Agreement and (ii) promptly discloses (and, if applicable, provides copies of) any of its Subsidiaries, or afford access such information to Parent to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected extent not previously provided to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries Parent and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (who has made such an unsolicited bona fide written Acquisition Proposal, if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) extent that prior to taking any of the actions set forth action described in clause (A) or (B) with respect to a Qualified Personabove, (x) the Board of Directors of the Company Board shall have determined determines in good faith (faith, after consultation with its outside legal counsel) , that the failure to take such action would is reasonably likely to be inconsistent with its the directors’ fiduciary obligations duties under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Oklahoma Law.
Appears in 1 contract
No Solicitation or Negotiation. Except From the date of this Agreement until the Effective Time, except as set forth in this Section 6.1, until the Specified Time5.10(b), neither the Company nor any of its Subsidiaries shall, and the Company nor shall cause its and its Subsidiaries’ directors and officers not to, and shall not they authorize or knowingly permit any of its their respective directors, officers, employees, investment bankers, attorneys, accountants or other Representatives advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to, directly or indirectly:
(i) Solicitsolicit, initiate, or knowingly encourageor intentionally encourage or facilitate, any inquiries, offers or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest proposals that constitutesconstitute, or would reasonably be expected to lead to, any Acquisition Proposal;Proposal (including, without limitation, amending or granting any waiver or release under any standstill or similar Contract with respect to any Company Capital Stock); or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make any information with respect to, assist or has made an participate in any effort or attempt by any Person with respect to, or otherwise knowingly or intentionally cooperate in any way with, any Acquisition Proposal (provided, however, that providing notice of the restrictions set forth in this Section 5.10 to a third party in response to any such inquiry, request or any indication Acquisition Proposal shall not be deemed a breach of interest this Section). Notwithstanding anything herein to the contrary, prior to the time that would the Requisite Stockholder Approval has been obtained (the “Company Specified Time”), the Company may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, in response to a bona fide written Acquisition Proposal made or received after the date of this Agreement that the Company Board determines in good faith after consultation with outside counsel and its financial advisor is reasonably be expected likely to lead to an a Superior Proposal, in each case that did not result from a breach by the Company of, or actions by its Representatives inconsistent with, this Section 5.10, and subject to compliance with Section 5.10(c), (x) furnish information with respect to the Company or its Subsidiaries to the Person making such Acquisition Proposal and its Representatives, and (y) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal, if, in the case of either clause (x) or (y), prior to taking such action the Company enters into a customary confidentiality Contract not less restrictive of the other party than the Confidentiality Agreement. Without limiting the foregoing, it is agreed that any information relating to violation of the restrictions set forth in this Section 5.10(a) by any Representative of the Company or any of its Subsidiaries, and any conduct by any Representatives which the Company is not permitted to authorize or afford access permit hereunder, whether or not such Person is purporting to the business, properties, assets, books or records act on behalf of the Company or any of its Subsidiaries;
(iii) enter into any letter of intentotherwise, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of shall be deemed to be a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms breach of this Section 6.1 in connection with such Qualified Person, (25.10(a) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of by the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 1 contract
Sources: Merger Agreement (Telecommunication Systems Inc /Fa/)
No Solicitation or Negotiation. Except Clover agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time7.10, neither the Company it nor any of its Subsidiaries shall, shall and the Company it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ directors and officers Representatives not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Competing Proposal;
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal regarding, or any indication of interest that would could reasonably be expected to lead to an Acquisition to, a Competing Proposal, or furnish provide any information or data to any Person that is seeking in connection with the foregoing, in each case, except to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records notify such Person of the Company or any existence of its Subsidiariesthe provisions of this Section 7.10;
(iii) enter into otherwise knowingly facilitate any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement effort or similar agreement providing for the consummation of attempt to make a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))Competing Proposal; or
(iv) terminate, amend, waive resolve or fail agree to enforce any rights under any “standstill” or other similar agreement between the Company or do any of its Subsidiaries and any Person (other than the Parent)foregoing. Notwithstanding the foregoing or anything to the contrary set forth in the foregoing provisions of this AgreementSection 7.10, prior to but not after the Company time the Clover Stockholder Approval is obtained, Clover may (A) furnish provide information with respect in response to a request therefor by a Person who has made an unsolicited bona fide written Competing Proposal that did not result from a breach of this Section 7.10 if the Company and its Subsidiaries to any Qualified Person (and the Representatives of so requesting such Qualified Person), information enters into an Acceptable Confidentiality Agreement; or (B) engage or otherwise participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such Acquisition an unsolicited bona fide written Competing Proposal or (C) amend, or grant that did not result from a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms breach of this Section 6.1 in connection with such Qualified Person7.10, if and only to the extent that (2I) prior to taking any of the actions set forth action described in clause (A) or (B) with respect to a Qualified Persondirectly above, (x) the Company Clover Board shall have determined determines in good faith (after consultation with its outside legal counsel) counsel that the failure to take such action would be inconsistent with its fiduciary obligations the directors’ duties under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) Law and (zII) in each such case referred to in clause (A) or (B) directly above, the Company shall have given the Parent written notice of the Company’s determination Clover Board has determined in good faith and after consultation with its outside legal counsel and financial advisor that such Person is Competing Proposal either constitutes a Qualified Person and (3) contemporaneously with furnishing any information Superior Proposal or could reasonably be expected to such Person, the Company furnishes such information lead to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)a Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time5.6, neither it nor any of its Subsidiaries nor any of the Company nor officers and directors of it or any of its Subsidiaries shall, and the Company that it shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ directors and officers Representatives not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce intentionally encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition ProposalProposal (as defined below);
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;Proposal; or
(iii) enter into otherwise intentionally facilitate any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement effort or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected attempt to lead to make an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into Proposal. Notwithstanding anything in the circumstances referred foregoing to in Section 6.1(a)); or
(iv) terminatethe contrary, amendprior to the time that, waive or fail to enforce any rights under any “standstill” or other similar agreement between but not after, the Company or any of its Subsidiaries and any Person (other than Stockholder Vote is obtained, if the Parent). Notwithstanding the foregoing or anything Company has otherwise complied in all material respects with this Section 5.6 with respect to the contrary set forth in this Agreementsuch Acquisition Proposal, the Company may (A) furnish provide information in response to a request therefor by a Person who has made an unsolicited written Acquisition Proposal that the Company Board of Directors believes in good faith to be bona fide providing for the acquisition of more than 50% of the assets (on a consolidated basis) or total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not more favorable in all material respects to such other Person than those contained in the Confidentiality Agreement (except that such confidentiality agreement shall contain additional provisions that expressly permit the Company to comply with respect the provisions of this Section 5.6 and such confidentiality agreement need not prohibit the making of an Acquisition Proposal), and promptly discloses (and, if applicable, provides copies of) any such information to Parent to the Company and its Subsidiaries extent not previously provided to any Qualified Person (and the Representatives of such Qualified Person), or Parent; (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such an unsolicited bona fide written Acquisition Proposal of the type described in clause (A) above; or (C) amendafter having complied with Section 5.6(c), approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Acquisition Proposal, however, that in the case of any action taken pursuant if and only to the foregoing clauses (A)extent that, (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2x) prior to taking any of the actions set forth action described in clause (A) or (B) with respect to a Qualified Personabove, (x) the Company Board shall have determined of Directors determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with its the directors’ fiduciary obligations duties under applicable law, Applicable Law; (y) in each such case referred to in clause (A) or (B) above, the Company shall have entered into a confidentiality agreement Board of Directors has determined in good faith based on the terms of which are no less favorable information then available (after consultation with respect to the Company than the Confidentiality Agreement Financial Advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal (which confidentiality agreement shall not include any provisions that would prevent as defined below) or restrict the Company or its Representatives from providing any information is reasonably likely to the Parent to which the Parent would be entitled under any provision of this Agreement) result in a Superior Proposal; and (z) in the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and case referred to in clause (3C) contemporaneously with furnishing any information to such Personabove, the Company furnishes such information to the Parent Board of Directors determines in good faith (to the extent such information has not been previously furnished or made available by after consultation with the Company to the Parent)Financial Advisor and outside legal counsel) that such Acquisition Proposal is a Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Except The Company agrees that, except for the TARP Transaction or as set forth in expressly permitted by this Section 6.1, until the Specified Time3.4, neither the Company it nor any of its the Subsidiaries nor any of the officers and directors of it or the Subsidiaries shall, and the Company that it shall use its best efforts to instruct and cause its and its the Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i1) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii2) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, or provide any non-public information or data to any person relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv3) terminate, amend, waive otherwise facilitate knowingly any effort or fail attempt to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)make an Acquisition Proposal. Notwithstanding anything in the foregoing or anything to the contrary set forth in this Agreementcontrary, the Company may (A) furnish provide information with respect in response to a request therefor by a person who has made an unsolicited bona fide written Acquisition Proposal providing for the acquisition of more than 50% of the assets (on a consolidated basis) or total voting power of the equity securities of the Company if the Company receives from the person so requesting such information an executed confidentiality agreement on terms not less restrictive to the other party than those contained in the confidentiality agreement entered into by the Company and its Subsidiaries Purchaser on November 18, 2008 and promptly discloses (and, if applicable, provides copies of) any such information to any Qualified Person (and Purchaser to the Representatives of such Qualified Person), or extent not previously provided to Purchaser; (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of person who has made such Qualified Person) regarding any such an unsolicited bona fide written Acquisition Proposal Proposal; or (C) amendafter having complied with Section 3.4(c), approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Acquisition Proposal, howeverif and only to the extent that, that in the case of (x) prior to taking any action taken pursuant to the foregoing clauses described in clause (A), (B) or (C)) above, the Board of Directors determines in good faith after consultation with outside legal counsel that such action is necessary in order for such directors to comply with the directors’ fiduciary duties under applicable law, (1y) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with each such Qualified Person, (2) prior case referred to taking any of the actions set forth in clause (A) or (B) above, the Board of Directors has determined in good faith based on the information then available and after consultation with respect its financial advisor that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Qualified PersonSuperior Proposal, and (xz) in the Company case referred to in clause (C) above, the Board shall have determined of Directors determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Acquisition Proposal is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.1(i) Prime shall not, until the Specified Timenor shall Prime authorize its directors, neither the Company nor any of its Subsidiaries shallofficers, employees, investment bankers, attorneys, accountants and the Company shall cause its other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and its Subsidiaries’ directors and officers not torepresentatives, and shall not authorize or knowingly permit any of its other Representatives collectively, “Representatives”) to, directly or indirectly:
(i) Solicitindirectly solicit, initiate, initiate or knowingly encourage, take any action to facilitate or induce encourage the submission of any inquiries Acquisition Proposal or the making, submission or announcement making of any proposal, offer or indication of interest proposal that constitutes, or would could reasonably be expected to lead to, to any Acquisition Proposal;
, or, subject to Section 6.1(a)(ii), (iii) enter into, continue or otherwise participate conduct or engage in any discussions or negotiations regarding with, disclose any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any non-public information relating to the Company or any of its SubsidiariesPrime to, or afford access to the business, properties, assets, books or records of the Company Prime to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of Prime or (B) approve any transaction under, or any third party becoming an “interested stockholder“ under Section 33-844 of its Subsidiaries;
the CBCA, or (iii) enter into any agreement in principle, letter of intent, memorandum of understanding, agreement in principleterm sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or similar agreement providing for the consummation of a transaction contemplated by other contract, agreement, arrangement, instrument or understanding relating to any Acquisition Proposal (each, a “Prime Acquisition Agreement”). Subject to Section 6.1(a)(ii), neither the Prime Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to the Bank, the Prime Voting Proposal, or recommend an Acquisition Proposal, or fail to recommend against acceptance of any tender offer or exchange offer for Prime Common Shares within ten (10) Business Days after the commencement of such offer, or make any public statement inconsistent with the Prime Voting Proposal, or resolve or agree to take any of the foregoing actions (any of the foregoing, a “Prime Adverse Recommendation Change”).
(ii) Notwithstanding Section 6.1(a)(i), prior to the approval of the Prime Voting Proposal at the meeting of the Stockholders (the “Prime Meeting”) to consider the Prime Voting Proposal, the Prime Board, directly or indirectly through any Representative, may, subject to Section 6.1(a)(iii) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Prime Board believes in good faith, after consultation with outside legal counsel and its financial advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to Prime pursuant to an executed confidentiality agreement not, in the aggregate, less restrictive of the other party than the Confidentiality Agreement, and/or (iii) take any action that any court of competent jurisdiction orders Prime to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (ii), only if the Prime Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Prime Board to be in breach of its fiduciary duties under applicable Law.
(iii) The Prime Board shall not take any of the actions referred to in clauses (i) through (iii) of Section 6.1(a)(ii) unless Prime shall have first delivered to the Companies a prior written notice advising the Companies that it intends to take such action. Prime shall notify the Companies promptly (but in no event later than twenty-four (24) hours) after it obtains knowledge of the receipt by Prime (or any indication of interest its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred Proposal, any request for non-public information relating to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive Prime or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything for access to the contrary set forth in this Agreementbusiness, properties, assets, books or records of Prime by any third party. In such notice, Prime shall identify the Company may (A) furnish information with respect to third party making, and details of the Company material terms and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person)conditions of, or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal Proposal, indication or (C) amendrequest. Prime shall keep the Bank informed, or grant on a waiver or release undercurrent basis, any standstill or similar agreement; provided, however, that in of the case status and material terms of any action taken pursuant such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. Prime shall provide the Bank with at least forty-eight (48) hours’ prior notice of any meeting of the Prime Board (or such lesser notice as is provided to the foregoing clauses (A), (B) or (C), (1) none members of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2Prime Board) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to at which the Parent would be entitled under Prime Board is reasonably expected to consider any provision Acquisition Proposal. Prime shall promptly provide the Bank with a list of this Agreement) and (z) the Company shall have given the Parent written notice any non-public information concerning Prime’s business, present or future performance, financial condition or results of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing operations, provided to any information to such Personthird party, the Company furnishes such information to the Parent (and, to the extent such information has not been previously furnished or made available by the Company provided to the Parent)Bank, copies of such information.
Appears in 1 contract
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.16.2, from the date of this Agreement until the Specified TimeEffective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, neither it nor any of its Subsidiaries nor any of the Company nor officers and directors of it or any of its Subsidiaries shall, and the Company that it shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ directors and officers Representatives not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, or provide any non-public information to any Person relating to, any Acquisition Proposal; or
(iii) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal. Notwithstanding anything in the foregoing to the contrary, prior to the time that, but not after, the Requisite Company Vote is obtained, if the Company has otherwise complied in all material respects with this Section 6.2, (1) following receipt by the Company of an Acquisition Proposal from any Person, the Company and its Representatives may contact such Person solely in order to (A) clarify and understand the terms and conditions of any Acquisition Proposal made by such Person so as to determine whether such Acquisition Proposal constitutes or any indication of interest that would could reasonably be expected to lead to an Acquisition Proposal, or furnish to any result in a Superior Proposal and (B) notify such Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any provisions of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ; and (2) the Company may (A) furnish provide information with respect in response to a request therefor by a Person (other than any Affiliate of the Company) who has made an unsolicited written Acquisition Proposal that the Company board of directors believes in good faith to be bona fide and providing for the acquisition of more than 50% of the assets (on a consolidated basis) or more than 50% of the total voting power of the equity securities of the Company if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not more favorable to such other Person than those contained in the Confidentiality Agreement (as defined in Section 6.6); and promptly discloses (and, if applicable, provides copies of) any such information to the Strategic Investor and Controlling Shareholder to the extent not previously provided to the Strategic Investor and Controlling Shareholder (subject to the right of the Company and its Subsidiaries to any Qualified Person (and withhold such portions of documents or information to the Representatives extent relating to pricing or other matters that are highly sensitive if the exchange of such Qualified Personinformation (or portions thereof), as reasonably determined by the Company’s counsel, would be reasonably likely to result in antitrust difficulties for the Company (or any of its Affiliates)); (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such an unsolicited bona fide written Acquisition Proposal of the type described in clause (2)(A) above; or (C) amendafter having complied with Section 6.2(b), approve, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill recommend or similar agreementdeclare advisable (publicly or otherwise) such an Acquisition Proposal; provided, however, that (x) in each such case referred to in clause (2)(A) or (2)(B) above, the board of directors of the Company has determined in good faith based on the information then available (and after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal; and (y) in the case referred to in clause (2)(C) above, the board of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none directors of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person Acquisition Proposal is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the Company nor any of its Subsidiaries shallSellers shall not, and the Company Sellers shall cause its their respective directors, officers, members, employees, agents, attorneys, consultants, contractors, accountants, financial or other advisors and its Subsidiaries’ directors and officers other representatives (collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(iA) Solicitsolicit, initiateseek, initiate or knowingly encouragetake any action to facilitate or encourage any offers, or induce any inquiries inquiries, indications of interest or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal, or engage, participate in or facilitate any discussions or negotiations regarding, or furnish any non-public information to any Person in connection with any offers, inquiries, indications of interest or proposals that constitute or could reasonably be expected to lead to, an Acquisition Proposal;
(iiB) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person (other than Purchaser and its Affiliates) any non-public information or afford any Person (other than Purchaser and its Affiliates) access to such party’s property, books or records (except pursuant to a request by a Governmental Authority) in connection with any offers, inquiries or the making of any proposal or offer that is seeking to make constitutes, or has made an Acquisition Proposal or any indication of interest that would could reasonably be expected to lead to an to, any Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its SubsidiariesProposal;
(iiiC) enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, purchase agreement, exchange agreement, option agreement, joint venture, partnership agreement or similar agreement providing for the consummation of a transaction contemplated by contemplating any Acquisition Proposal (an “Alternative Acquisition Agreement”);
(D) amend or grant any indication waiver or release under any standstill or similar agreement with respect to any class of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))equity securities of any Seller; or
(ivE) terminate, amend, waive or fail take any action to enforce make the provisions of any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries anti-takeover statute inapplicable to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised transactions contemplated by an Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Proposal.
Appears in 1 contract
Sources: Asset Purchase Agreement (Universal Security Instruments Inc)
No Solicitation or Negotiation. Except as set forth in expressly permitted by this Section 6.16.2 (including Section 6.2(c)) and except as may relate to any Excluded Party, until the Specified Time, neither the Company nor any of and its Subsidiaries and their respective officers and directors shall, and the Company shall cause the Company Representatives to, (i) at 12:00 a.m. (Nashville time) on the 31st calendar day after the date of the Prior Agreement (the “No-Shop Period Start Date”) immediately cease and terminate any solicitation, encouragement (including by way of providing access to non-public information or the business, properties, assets or personnel of the Company or any of its Subsidiaries to any Person and its Representatives, its Affiliates and its prospective equity and debt financing sources), discussions or negotiations (or any other actions permitted by Section 6.2(a)) with any Persons that may be ongoing with respect to any inquiry, proposal or Acquisition Proposal, and as promptly as practicable thereafter deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any inquiry, proposal or Acquisition Proposal, effective immediately, which notice shall also request such Person to return or destroy promptly all confidential information concerning the Company and its Subsidiaries’ directors and officers not to, and the Company shall take all reasonably necessary actions to secure its rights and ensure the performance of any such Person’s obligations under any applicable confidentiality agreement (including enforcement of any applicable standstill provision), and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, not authorize directly or indirectly (A) initiate, solicit, knowingly facilitate or knowingly permit encourage (publicly or otherwise) (including by way of providing access to non-public information or the business, properties, assets or personnel of the Company or any of its other Subsidiaries to any Person and its Representatives to, directly or indirectly:
(iand its Affiliates) Solicit, initiate, or knowingly encourage, or induce any inquiries regarding, or the making, submission or announcement of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any to an Acquisition Proposal;
, (iiB) engage or enter into, continue or otherwise participate or engage in any discussions or negotiations regarding with respect to, or provide any non-public information or data concerning, the Company or its Subsidiaries to any Person relating to, or that would reasonably be expected to lead to, any Acquisition Proposal or otherwise cooperate with or assist or participate in, or knowingly facilitate such inquiries, proposals, discussions or negotiations, (C) grant to any indication Person any waiver, amendment or release under any standstill or confidentiality agreement, the Rights Agreement or any Takeover Statute (in each case, other than (if the Board first determines that the failure to take such action would be inconsistent with the Company directors’ fiduciary duties under Applicable Law) a limited waiver, amendment or release thereunder for the sole purpose of interest allowing any Person or Group to make an Acquisition Proposal or an offer that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C)D) otherwise facilitate any such inquiries, (1) none proposals, discussion or negotiations or any effort or attempt by any Person to make an Acquisition Proposal. A breach by any Subsidiary or Representative of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person6.2 shall constitute a breach by the Company of this Section 6.2. Within twenty-four (24) hours following the No-Shop Period Start Date, (2) prior to taking any the Company will notify Parent of the actions set forth number and identity of Excluded Parties and, subject to the ability of the Company to make a Recommendation Withdrawal pursuant to and in clause (A) or (B) accordance with respect to a Qualified Personthis Section 6.2, (x) the Company’s Board of Directors shall publicly expressly reaffirm the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Recommendation.
Appears in 1 contract
No Solicitation or Negotiation. Except The Company agrees that, from the date of this Agreement until the earlier of the Company Merger Effective Time and the termination of this Agreement in accordance with ARTICLE VIII, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company nor any of its Subsidiaries nor any of the directors, officers or senior employees of it or its Subsidiaries shall, and the Company shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ directors investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, senior employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit, knowingly encourage or knowingly encourage, or induce facilitate any inquiries or the making, submission or announcement making of any proposal, offer or indication of interest interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (as defined below); or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions (other than informing any Person of the provisions contained in this Section 6.2(a)) or negotiations regarding regarding, or provide any Acquisition Proposal non-public information or data to any Person with respect to, any indication of interest interest, proposal or offer that would constitutes, or could reasonably be expected to lead to to, an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;; or
(iii) execute or enter into any letter of intent, agreement in principle, term sheet, memorandum of understanding, agreement in principlemerger agreement, acquisition agreement, merger agreement or other similar definitive agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead relating to an Acquisition Proposal (other than a confidentiality agreement referred an Acceptable Confidentiality Agreement (as defined below)) (an “Alternative Acquisition Agreement”). Notwithstanding anything in this Agreement to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) contrary, the Company may terminate, waive, amend, waive release or fail to enforce modify any rights under provision of any “standstill” standstill agreement (including any standstill provisions contained in any confidentiality or other similar agreement between the Company agreement) to which it or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing Affiliates or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)party.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the The Company nor any of its Subsidiaries shallagrees that it shall not, and the Company it shall cause its and its Subsidiaries’ directors and officers Subsidiaries not to, and it shall use its commercially reasonable efforts to cause their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit, knowingly cooperate with or knowingly encourage, encourage or induce otherwise knowingly facilitate any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;Proposal (as defined below); or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to provide any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiariesnon-public information, or afford data, access to the business, its properties, assets, books employees or records Representatives in connection with or relating to any Acquisition Proposal. Notwithstanding anything in the foregoing to the contrary, prior to the time, but not after, this Agreement is adopted by vote of the Stockholders at the Stockholders Meeting (as defined in Section 6.4), the Company may: (A) provide information, data, access to its properties, assets, employees or Representatives in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal providing for the acquisition of more than 75% of the assets (on a consolidated basis) or more than 50% of the total voting power of the equity securities of the Company or any if the Board of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for Directors receives from the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to Person so requesting such information an Acquisition Proposal (other than a executed confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect on terms not substantially less favorable to the Company and its Subsidiaries than to any Qualified Person those contained in the Confidentiality Agreement (and the Representatives of such Qualified Personas defined in Section 9.7), or ; (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of who has made such Qualified Person) regarding any such an unsolicited bona fide written Acquisition Proposal Proposal; or (C) amendapprove, adopt, recommend, or grant a waiver otherwise declare advisable or release underpropose to approve, any standstill adopt, recommend or similar agreement; provideddeclare advisable (publicly or otherwise) such an Acquisition Proposal, however, that in the case of any action taken pursuant if and only to the foregoing clauses extent that, (x) in each such case referred to in clause (A), (B) or (C)) above, (1) none the Board of Directors of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined determines in good faith (faith, after consultation with ▇▇▇▇▇▇ or another nationally recognized investment banking firm (“Financial Advisor”) and outside legal counsel) , that the failure to take taking such action would be inconsistent is necessary in order to comply with its their respective fiduciary obligations duties under applicable lawLaw, (y) in such case referred to in clause (B) above, if the Board of Directors of the Company shall have entered into has determined in good faith, based on the information then available and after consultation with its outside legal counsel and outside Financial Advisor, that such Acquisition Proposal reasonably could result in a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement Superior Proposal (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) as defined below); and (z) the Company in such case referred to in clause (C) above (I) such Acquisition Proposal is a Superior Proposal, (II) Purchaser shall have given the Parent received written notice of the Company’s determination that such Person is a Qualified Person and intention to take the action referred to in Clause (3C) contemporaneously with furnishing any information to such Personabove, the Company furnishes such information as applicable, at least four business days prior to the Parent (to the extent taking of such information has not been previously furnished or made available action by the Company (the “Waiting Period”) and (III) during the Waiting Period the Company and its advisors shall have negotiated in good faith with the Purchaser and Merger Sub to make adjustments in the Parent)terms and conditions of this Agreement and, the Board of Directors of the Company fully considers any such adjustment and nonetheless concludes in good faith, after consultation with its outside legal counsel and Financial Advisor that such Acquisition Proposal constitutes a Superior Proposal.
Appears in 1 contract
Sources: Merger Agreement (Sourcecorp Inc)
No Solicitation or Negotiation. Except as set forth in Subject to the provisions of this Section 6.16.2, from the date of this Agreement until the Specified TimeEffective Time (or, neither if earlier, the valid termination of this Agreement in accordance with ARTICLE VIII) the Company nor shall not, and shall use its reasonable best efforts to cause its and its Subsidiaries and its and their respective directors, officers and employees not to, and shall instruct its investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) not to, directly or indirectly: (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; (ii) participate in any discussions or negotiations with any Person regarding any Acquisition Proposal; or (iii) provide any non-public information concerning the Company or any of its Subsidiaries to any Person in connection with any Acquisition Proposal. The Company shall, and the Company shall cause its Subsidiaries and direct its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
immediately (i1) Solicit, initiate, or knowingly encourage, or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably cease and cause to be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in terminated any discussions or and negotiations regarding with any Acquisition Proposal or Person (other than Parent, Merger Sub and their Representatives) conducted theretofore with respect to any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person proposal that is seeking to make or has made an Acquisition Proposal or any indication of interest that would could reasonably be expected to lead to an Acquisition Proposal and cease providing any information relating to any such Person or its Representatives, (2) with respect to any Person with whom such discussions or negotiations have been terminated, promptly following the Company date hereof (and in any event within two Business Days hereof) request that such Person and its Representatives to return or destroy, in accordance with the terms of the applicable confidentiality agreement, any of its Subsidiaries, information furnished by or afford access to the business, properties, assets, books or records on behalf of the Company or and shall take all necessary action to secure its rights and ensure the performance of any of its Subsidiaries;
(iii) enter into such Person’s obligations under any letter of intent, memorandum of understanding, agreement in principle, acquisition applicable confidentiality agreement, merger (3) promptly terminate all access granted to any Person and its Representatives to any physical or electronic data rooms relating (or other diligence access) and (4) not terminate, waive, amend or modify any provision of any existing confidentiality or standstill agreement or similar agreement providing for with respect to a potential Acquisition Proposal; provided that the consummation foregoing shall not restrict the Company from (x) permitting a Person to request the waiver of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between obligation or from granting such a waiver, in each case, to the Company extent necessary to comply with fiduciary duties under applicable Law or any of its Subsidiaries and (y) informing any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)6.2.
Appears in 1 contract
Sources: Merger Agreement (Agiliti, Inc. \De)
No Solicitation or Negotiation. Except At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company that it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit, propose, knowingly encourage or knowingly encourage, or induce take any inquiries action to facilitate any inquiry or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any an Acquisition Proposal;; or
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, or provide any information or data concerning the Company or any Subsidiary of the Company to any Person relating to any Acquisition Proposal or any indication of interest proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) grant any waiver, amendment or release under any standstill agreement or Takeover Statutes, or otherwise fail to enforce any of the foregoing; provided, however, that the Company shall not be prohibited taking (or, in the case of enforcement, shall not be required to take) any such action if the Company Board shall have determined in good faith, after consultation with outside legal counsel, that failing to take such action (or in the case of enforcement, taking such action) would be inconsistent with the directors’ fiduciary duties under applicable Law;
(iv) approve, endorse, recommend, or execute or enter into any letter of intent, agreement in principle, term sheet, memorandum of understanding, agreement in principlemerger agreement, acquisition agreement, merger agreement or other similar agreement providing for the consummation of a transaction contemplated by any Contract relating to an Acquisition Proposal or any indication of interest proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(aan Acceptable Confidentiality Agreement) entered into in the circumstances referred to in Section 6.1(a)(an “Alternative Acquisition Agreement”); or
(ivv) terminateresolve, amendpropose or agree to do any of the foregoing. The Company agrees that it and its Subsidiaries shall, waive and that it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, (A) immediately cease all discussions and negotiations with any Person that may be ongoing with respect to any Acquisition Proposal, or fail any proposal or offer that would reasonably be expected to enforce lead to an Acquisition Proposal, (B) deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any rights under Acquisition Proposal or any such proposal or offer, effective on the date hereof, which notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and its Subsidiaries and (C) terminate the access of any Persons other than Parent and its Representatives to any “standstilldata room” or other similar agreement between hosted by the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries Representatives relating to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Proposal.
Appears in 1 contract
No Solicitation or Negotiation. (a) The Seller shall, and shall cause its Subsidiaries and other Affiliates and their respective officers, other employees with managerial responsibilities, directors, representatives (including the Financial Advisor or any other investment banker and any attorneys and accountants) and agents to, immediately cease any discussions or negotiations with
(i) notify the Buyer in the event that the Seller or any of its Subsidiaries or other Affiliates or any of their respective officers, directors, employees, representatives or agents receives any proposal or inquiry concerning a Third Party Acquisition, including the terms and conditions thereof and the identity of the party submitting such proposal, and any request for confidential information in connection with a potential Third Party Acquisition, (ii) provide the Buyer with a copy of any written agreements, proposals or other materials the Seller receives from any such person or group (or its representatives), and (iii) advise the Buyer of the status of such negotiations from time to time and at any time upon the Buyer's request, and promptly following any developments concerning the same.
(b) Except as set forth in this Section 6.15.2(b), until the Specified Time, neither the Company nor any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and Seller's Board shall not authorize withdraw or knowingly permit any modify its recommendation of its other Representatives to, directly the transactions contemplated hereby or indirectly:
(i) Solicit, initiateapprove or recommend, or knowingly encourage, cause or induce any inquiries or permit the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company Seller or any of its Subsidiaries and to enter into any Person (other than the Parent)agreement or obligation with respect to, any Third Party Acquisition. Notwithstanding the foregoing foregoing, if the Seller Board by a majority vote determines in its good faith judgment, after consultation with and based upon the advice of legal counsel and the Financial Advisor, that it is required to do so in order to comply with its fiduciary duties under the DGCL, the Seller Board may withdraw its recommendation of the transactions contemplated hereby or anything approve or recommend a Superior Proposal, but in each case only (i) after providing written notice to the contrary set forth Buyer (a "Notice of Superior Proposal") advising the Buyer that the Seller Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person or group making such Superior Proposal and (ii) if the Buyer does not, within five (5) business days after the Buyer's receipt of the Notice of Superior Proposal, make an offer that the Seller Board by a majority vote of the entire Seller Board determines in this Agreement, its good faith judgment (based on the Company may (Aadvice of the Financial Advisor or another financial advisor of nationally recognized reputation) furnish information with respect to be at least as favorable to the Company and its Subsidiaries to any Qualified Person (and the Representatives of Seller's stockholders as such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementSuperior Proposal; provided, however, that the Seller shall not be entitled to enter into any agreement with respect to a Superior Proposal unless and until (w) this Agreement is terminated pursuant to Section 7.1, (x) the Seller has paid (by wire transfer in same day funds) all amounts due to the Buyer pursuant to Section 7.3, (y) the Seller has agreed with the Buyer that it will not provide to any third party any work product developed by the Buyer with respect to business concepts applicable to the Seller's businesses and (z) the Buyer has received written acknowledgment from the Seller and from each other party to the Third Party Acquisition that the Seller and each other party to the Third Party Acquisition have irrevocably waived any right to contest such payment. Any disclosure that the Seller Board may be compelled to make with respect to the receipt of a proposal for a Third Party Acquisition or otherwise in order to comply with its fiduciary duties or Rules 14d-9 or 14e-2 will not constitute a violation of this Agreement; provided, however, that such disclosure states that no action will be taken by the Seller Board in violation of this Section 5.2(b).
(c) For purposes of this Agreement, "Third Party Acquisition" means the occurrence of any of the following events: (i) the acquisition of the Seller by merger, stock purchase or otherwise by any Person (which includes a "person" as such term is defined in Section 13(d)(3) of the Exchange Act) other than the Buyer or any Affiliate thereof (a "Third Party"); (ii) the acquisition by a Third Party of any material portion of the assets (which shall include ten percent (10%) or more of the assets or more than five (5) stores) of the Seller and its Subsidiaries, taken as a whole, other than the sale of its products in the case ordinary course of any action taken pursuant to business consistent with past practices and other than in a Sale Leaseback Transaction as provided for in Article 8 hereof; (iii) the foregoing clauses acquisition by a Third Party of fifteen percent (A), (B15%) or (C), (1) none more of the Company outstanding Shares; (iv) the adoption by the Seller of a plan of liquidation or the declaration or payment of an extraordinary dividend; (v) the repurchase by the Seller or any of its Subsidiaries shall have breached of more than ten percent (10%) of the outstanding Shares; or violated (vi) the acquisition by the Seller or any of its Subsidiaries by merger, purchase of stock or assets, joint venture or otherwise, of a direct or indirect ownership interest or investment in any material respect business (or businesses) whose annual revenues, net income or assets is equal to or greater than ten percent (10%) of the terms annual revenues, net income or assets of the Seller and its Subsidiaries, respectively. For purposes of this Section 6.1 in connection with such Qualified PersonAgreement, a "Superior Proposal" means any bona fide proposal (1) to acquire, directly or indirectly, for consideration consisting solely of cash and/or securities, all of the Shares then outstanding, or all or substantially all the assets of the Seller and its Subsidiaries, (2) prior that contains terms that the Seller Board by a majority vote determines in its good faith judgment (based, as to taking any the financial terms, on the written advice of the actions Financial Advisor or another financial advisor of nationally recognized reputation) to be more favorable to the Seller's stockholders than the Merger, (3) that the Seller Board by a majority vote determines in its good faith judgment (following and based on consultation with the Financial Adviser or another financial advisor of nationally recognized reputation and its legal and other advisors) to be reasonably capable of being completed (taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal), (4) that does not contain any "due diligence" condition other than any due diligence condition set forth in clause this Agreement (A) or (B) with respect to a Qualified Person, it being understood that (x) if the Company Board Buyer agrees to waive any due diligence condition set forth herein prior to termination of this Agreement pursuant to Section 7.1(c)(iv), such due diligence condition shall be deemed not to be a provision set forth in this Agreement for purposes of this Section 5.2(c) and (y) if the Third Party then makes a similar waiver, the Third Party shall not be deemed to have determined in good faith imposed the due diligence conditions so waived by the Third Party) and (after consultation with outside legal counsel5) that the failure Seller Board by a majority vote determines to take such action would be inconsistent with its fiduciary obligations under applicable lawfully financed (it being understood that this clause (5) shall apply only in the event that the Buyer demonstrates, (y) the Company shall have entered into after receipt of notice of a confidentiality agreement the terms proposed Third Party Acquisition and prior to termination of which are no less favorable with respect this Agreement pursuant to Section 7.1(c)(iv), that it has cash resources at least equal to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions Aggregate Merger Consideration or that would prevent or restrict the Company or its Representatives it has received a commitment from providing any information a financially viable source to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice supply such cash resources upon consummation of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Merger.
Appears in 1 contract
Sources: Merger Agreement (Uni Marts Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Effective Time, neither the Company nor any of its Subsidiaries shall, and the Company shall cause its directors, officers and its Subsidiaries’ directors and officers senior management not to, to and shall not authorize or knowingly permit any of use reasonable efforts to cause its other Representatives not to, directly or indirectly:
(i) Solicitsolicit, initiate, knowingly facilitate or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) other than informing Persons of the existence of the provisions of this Section 6.1, enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal Proposal, or provide or furnish to any indication of interest that Person or group who has made or would reasonably be expected to lead to an Acquisition Proposal, or furnish to make any Person that is seeking to make or has made an Acquisition Proposal or for the purpose of encouraging or facilitating any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any non-public information relating to concerning the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 6.1(c), if at any time prior to the Effective Time, (i) the Company has received after the date of this Agreement a written Acquisition Proposal that did not result from a material breach of this Section 6.1, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal (the Person making such Acquisition Proposal, a “Qualified Person”), then the Company may (A) furnish non-public information with respect to the Company and its Subsidiaries to any such Qualified Person (and the Representatives of such Qualified Person), pursuant to a confidentiality agreement not materially less restrictive with respect to the confidentiality and non-use obligations of the Qualified Person than the Confidentiality Agreement (provided, that the Company shall promptly thereafter (and in any event within one (1) Business Day) provide to the Parent, subject to the terms of the Confidentiality Agreement, any material non-public information (whether written or unwritten) concerning the Company and its Subsidiaries that is provided to (or made accessible to) such Qualified Person and which was not previously provided or made available to the Parent), (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any such Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or and (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of agreement with respect to any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or Common Stock with any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 1 contract
Sources: Merger Agreement (Analogic Corp)
No Solicitation or Negotiation. Except as set forth in this Section 6.1(i) Wilton shall not, until the Specified Timenor shall Wilton authorize its directors, neither the Company nor any of its Subsidiaries shallofficers, employees, investment bankers, attorneys, accountants and the Company shall cause its other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and its Subsidiaries’ directors and officers not torepresentatives, and shall not authorize or knowingly permit any of its other Representatives collectively, “Representatives”) to, directly or indirectly:
(i) Solicitindirectly solicit, initiate, initiate or knowingly encourage, take any action to facilitate or induce encourage the submission of any inquiries Acquisition Proposal or the making, submission or announcement making of any proposal, offer or indication of interest proposal that constitutes, or would could reasonably be expected to lead to, to any Acquisition Proposal;
, or, subject to Section 6.1(a)(ii), (iii) enter into, continue or otherwise participate conduct or engage in any discussions or negotiations regarding with, disclose any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any non-public information relating to the Company or any of its SubsidiariesWilton to, or afford access to the business, properties, assets, books or records of the Company Wilton to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of Wilton or (B) approve any transaction under, or any third party becoming an "interested stockholder" under Section 33-844 of its Subsidiaries;
the CBCA, or (iii) enter into any agreement in principle, letter of intent, memorandum of understanding, agreement in principleterm sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or similar agreement providing for the consummation of a transaction contemplated by other contract, agreement, arrangement, instrument or understanding relating to any Acquisition Proposal (each, a "Wilton Acquisition Agreement"). Subject to Section 6.1(a)(ii), neither Wilton Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to the Bank, Wilton Voting Proposal, or recommend an Acquisition Proposal, or fail to recommend against acceptance of any tender offer or exchange offer for Wilton Common Shares within ten (10) Business Days after the commencement of such offer, or make any public statement inconsistent with Wilton Voting Proposal, or resolve or agree to take any of the foregoing actions (any of the foregoing, a “Wilton Adverse Recommendation Change”).
(ii) Notwithstanding Section 6.1(a)(i), prior to the approval of Wilton Voting Proposal at the meeting of Wilton’s shareholders (the “Wilton Meeting”) to consider Wilton Voting Proposal, Wilton Board, directly or indirectly through any Representative, may, subject to Section 6.1(a)(iii) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that Wilton Board believes in good faith, after consultation with outside legal counsel and its financial advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to Wilton pursuant to an executed confidentiality agreement not, in the aggregate, less restrictive of the other party than the Confidentiality Agreement, and/or (iii) take any action that any court of competent jurisdiction orders Wilton to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (ii), only if Wilton Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause Wilton Board to be in breach of its fiduciary duties under applicable Law.
(iii) Wilton Board shall not take any of the actions referred to in clauses (i) through (iii) of Section 6.1(a)(ii) unless Wilton shall have first delivered to the Companies a prior written notice advising the Companies that it intends to take such action. Wilton shall notify the Companies promptly (but in no event later than forty-eight (48) hours) after it obtains knowledge of the receipt by Wilton (or any indication of interest its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred Proposal, any request for non-public information relating to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive Wilton or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything for access to the contrary set forth in this Agreementbusiness, properties, assets, books or records of Wilton by any third party. In such notice, Wilton shall identify the Company may (A) furnish information with respect to third party making, and details of the Company material terms and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person)conditions of, or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal Proposal, indication or (C) amendrequest. Wilton shall keep the Bank informed, or grant on a waiver or release undercurrent basis, any standstill or similar agreement; provided, however, that in of the case status and material terms of any action taken pursuant such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. Wilton shall provide the Bank with at least forty-eight (48) hours prior notice of any meeting of Wilton Board (or such lesser notice as is provided to the foregoing clauses (A)members of Wilton Board) at which Wilton Board is reasonably expected to consider any Acquisition Proposal. Wilton shall promptly provide the Bank with a list of any non-public information concerning Wilton's business, (B) present or (C)future performance, (1) none financial condition or results of the Company or operations, provided to any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Personthird party, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Personand, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company provided to the Parent)Bank, copies of such information.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Bankwell Financial Group, Inc.)
No Solicitation or Negotiation. Except Company agrees that, except as set forth in expressly permitted by this Section 6.1Section 5.2 (including if required under Section 5.2(b) and including as expressly permitted by Section 5.2(e)), until the Specified Timeit shall not, neither and it shall cause the Company nor any Subsidiaries and each of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors respective directors, officers and officers employees not to, and it shall use reasonable best efforts to cause its and the Company Subsidiaries’ respective Representatives not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit, knowingly encourage or otherwise knowingly encourage, or induce facilitate (including by way of furnishing non-public information) any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Company Competing Proposal;
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding with any Acquisition Company Third Party with respect to, relating to or in furtherance of any Company Competing Proposal or any indication of interest inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition a Company Competing Proposal;
(iii) provide any non-public information or data or access to the properties, assets or furnish employees of Company or its Subsidiaries to any Person that is seeking Company Third Party in connection with, related to make or has made an Acquisition in contemplation of any Company Competing Proposal or any indication of interest inquiry, proposal or offer that would reasonably be expected to lead to a Company Competing Proposal;
(iv) approve any Company Third Party becoming an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records “interested member” under article 9 of the Company or any Articles of its SubsidiariesAssociation;
(iiiv) discuss with any Company Third Party, approve or recommend, or propose to discuss, approve or recommend, or execute or enter into any agreement in principle, letter of intent, memorandum of understanding, agreement in principleterm sheet, merger agreement, acquisition agreement, merger option agreement, joint venture agreement, partnership agreement or similar agreement providing for other agreement, in each case of the consummation of foregoing relating to a transaction contemplated by any Acquisition Company Competing Proposal or any indication inquiry, proposal or offer, in each case of interest the foregoing that would reasonably be expected to lead to an Acquisition a Company Competing Proposal (other than a confidentiality agreement referred to as provided in Section 6.1(aSection 5.2(e)(ii) entered into in the circumstances referred to in Section 6.1(acompliance with Section 5.2(e)(ii)); or
(ivvi) terminatesubmit any Company Competing Proposal to the vote of the Company Shareholders, amendprovided, waive or fail that notwithstanding anything to enforce any rights under any “standstill” or other similar agreement between the contrary in this Section 5.2, Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing Representatives may, in response to an unsolicited inquiry or anything to the contrary set forth in this Agreementproposal from a Company Third Party, the inform a Company may (A) furnish information with respect to the Company and Third Party or its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none Representative of the Company or any of its Subsidiaries shall have breached or violated in any material respect restrictions imposed by the terms provisions of this Section 6.1 in connection with such Qualified PersonSection 5.2 (without conveying, (2) prior requesting or attempting to taking gather any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any other information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parentexcept as otherwise specifically permitted hereunder).
Appears in 1 contract
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company that it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any an Acquisition Proposal with any Person (other than Parent, Merger Sub or any indication designees of interest that would reasonably be expected to lead to an Acquisition ProposalParent or Merger Sub), or furnish provide any non-public information or data to any Person that is seeking to make or has made an Acquisition Proposal (other than Parent, Merger Sub or any indication designees of interest that would reasonably be expected to lead to an Acquisition Proposal any information Parent or Merger Sub) relating to to, the Company or any of its Subsidiaries, or to afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into Subsidiaries to any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal Person (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)Parent, Merger Sub or any designees of Parent or Merger Sub); or
(iviii) terminateotherwise assist, amendparticipate in, waive facilitate or fail knowingly encourage any effort or attempt by any third party to enforce any rights under any “standstill” make or other similar agreement between seek to make an Acquisition Proposal. Notwithstanding anything in the foregoing to the contrary, prior to the Acceptance Time, (A) the Company or may provide information relating to the Company and/or any of its Subsidiaries and any in response to a request therefor by a Person or “group” (other than as defined in or under Section 13(d) of the Parent). Notwithstanding Exchange Act) of Persons who has made a bona fide written Acquisition Proposal if the foregoing Company receives from the Person or anything group of Persons so requesting such information an executed customary confidentiality agreement on terms that, taken as a whole, are not less restrictive to the contrary set forth other party than those contained in this the Confidentiality Agreement; it being understood that such confidentiality agreement need not prohibit the making or amendment to an Acquisition Proposal; and promptly discloses (and, if applicable, provides copies of) any such information to Parent to the Company may extent not previously disclosed or provided; and (AB) furnish information with respect to the Company and its Subsidiaries to Representatives may engage or participate in any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person or “group” (as defined in or under Section 13(d) of the Exchange Act) of Persons who has made such a bona fide written Acquisition Proposal, in each case, if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A)extent that, (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth action described in clause (A) or (B) with respect to a Qualified Personabove, (x) the board of directors of the Company Board shall have determined or any committee thereof determines in good faith (after consultation with its outside legal counsel) counsel that the failure to take such action would be inconsistent with its the directors’ fiduciary obligations duties under applicable law, Law and (y) the Company shall have entered into a confidentiality agreement the terms board of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict directors of the Company or any committee thereof has determined in good faith based on the information then available and after consultation with its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) financial advisor and (z) the Company shall have given the Parent written notice of the Company’s determination outside legal counsel that such Person Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the Elected Officers and directors of it or its Subsidiaries shall, and the Company that it shall use its reasonable best efforts to cause its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, encourage or induce facilitate any inquiries or the making, submission or announcement making of any proposalinquiry, proposal or offer that constitutes or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would may reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(ivii) terminateengage in any discussions or negotiations regarding, amend, waive or fail provide any information or data to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)relating to, any Acquisition Proposal. Notwithstanding anything in the foregoing or anything to the contrary set forth in this Agreementcontrary, prior to the Acceptance Date, the Company may (A) furnish provide information or data in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if (x) the Company receives from the Person so requesting such information an executed confidentiality agreement on terms that are no less favorable (including with respect to standstill provisions) than those contained in the confidentiality agreements signed by certain affiliates of Parent and (y) the Company and its Subsidiaries substantially concurrently provides to Parent any Qualified non-public information provided to such Person (and the Representatives of such Qualified Person), which was not previously provided to Parent; or (B) engage or participate or engage in any discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (who has made such an unsolicited bona fide written Acquisition Proposal; if and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant only to the foregoing clauses (A), (B) or (C)extent that, (1) none of the Company or any of its Subsidiaries shall have has not breached or violated in any material respect the terms of this Section 6.1 in connection 6.2 with respect to such Qualified PersonAcquisition Proposal, (2) prior to taking any of the actions set forth action described in clause (A) or (B) with respect to a Qualified Personabove, (x) the board of directors of the Company Board shall have determined determines in good faith (after consultation with outside legal counsel) counsel that the failure to take such action would be inconsistent with its the directors’ fiduciary obligations duties under applicable lawLaw, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information in each such case referred to such Personin clause (A) or (B) above, the board of directors of the Company furnishes has determined in good faith based on the information then available and after consultation with its financial advisor and legal counsel that either (i) such information Acquisition Proposal constitutes a Superior Proposal or (ii) there is a reasonable likelihood that such Acquisition Proposal will result in a Superior Proposal. In addition, notwithstanding anything in the foregoing to the Parent (contrary, prior to the Acceptance Date the Company may render inapplicable, exempt or take action to render inapplicable or exempt any third party from any standstill arrangement or the provisions of any Takeover Statute if and only to the extent such information has not been previously furnished or made available by that the board of directors of the Company determines in good faith after consultation with outside legal counsel that failure to take such action would be inconsistent with the Parent)directors’ fiduciary duties under applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Biomet Inc)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until during the Specified Time, neither Pre-Closing Period the Company shall not, nor shall the Company authorize or permit any of its Subsidiaries shallto, and nor shall the Company shall cause authorize its directors, officers, employees, investment bankers, attorneys, accountants and its Subsidiaries’ directors other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and officers not torepresentatives, and shall not authorize or knowingly permit any of its other Representatives collectively, “Representatives”) to, directly or indirectly:
(i) Solicitsolicit, initiate, initiate or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or person any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any non-public information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation purpose of a transaction contemplated by encouraging or facilitating, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)Proposal. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the approval of this Agreement at the Company may Meeting (the “Specified Time”), the Company may, to the extent failure to do so could reasonably constitute a breach of fiduciary obligations of the Company Board under applicable law, as determined in good faith by the Company Board after consultation with outside counsel, (A) in response to a Superior Proposal or a bona fide, unsolicited written Acquisition Proposal made or received after the date of this Agreement that the Company Board determines in good faith after consultation with outside counsel and its financial advisor is reasonably likely to lead to a Superior Proposal, in each case that did not result from a breach by the Company of this Section 6.1, and subject to compliance with Section 6.1(c), (x) furnish information with respect to the Company to the person making such Acquisition Proposal and its Subsidiaries Representatives pursuant to any Qualified Person a customary confidentiality agreement not, in the aggregate, less restrictive of the other party than the Confidentiality Agreement and (and the Representatives of such Qualified Person), or (By) participate or engage in discussions or negotiations (including solicitation of a revised Superior Proposal or Acquisition ProposalsProposal) with any Qualified Person (such person and the its Representatives of such Qualified Person) regarding any such Acquisition Superior Proposal or Acquisition Proposal, and (CB) in response to a Superior Proposal or an inquiry that is reasonably likely to lead to a Superior Proposal, in each case that did not result from a breach by the Company of this Section 6.1, and subject to compliance with Section 6.1(c), amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) agreement with respect to a Qualified Person, (x) the any Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Common Stock.
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the Company shall not, nor shall it authorize or permit or encourage any of its Subsidiaries shalldirectors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and the Company shall cause its and its Subsidiaries’ directors and officers not torepresentatives, and shall not authorize or knowingly permit any of its other Representatives tocollectively, “Representatives”) to directly or indirectly:
(i) Solicitsolicit, initiate, induce or knowingly encourage, or induce encourage any inquiries or solicitations for the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition Proposal;; or
(ii) enter into, encourage, permit, indicate receptivity to, continue or otherwise participate or engage in any discussions or negotiations regarding regarding, furnish to any person any information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Acquisition Proposal. Notwithstanding the foregoing, prior to the adoption of this Agreement at the Company Stockholders Meeting (the “Specified Time”), the Company may, if such actions are required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, in response to a Superior Proposal or any indication a bona fide, unsolicited written Acquisition Proposal made or received after the date of interest this Agreement that would the Company Board determines in good faith, after consultation with outside counsel and a nationally recognized independent financial advisor, could reasonably be expected to lead to an Acquisition a Superior Proposal, or furnish to any Person in each case that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to did not result from a breach by the Company or any of its Subsidiariesthis Section 6.1, or afford access and subject to the businesscompliance with Section 6.1(c), properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (Ax) furnish information with respect to the Company to the person making such Superior Proposal or Acquisition Proposal and its Subsidiaries Representatives pursuant to any Qualified Person a confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (and the Representatives of such Qualified Person), or (By) participate or engage in discussions or negotiations (including solicitation of a revised Superior Proposal or Acquisition ProposalsProposal) with any Qualified Person (such person and the its Representatives of such Qualified Person) regarding any such Acquisition Superior Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Clinical Data Inc)
No Solicitation or Negotiation. Except The Company agrees that, except as set forth in expressly permitted by this Section 6.1, until the Specified Time6.2, neither the Company it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company shall cause that none of its and its Subsidiaries’ directors employees, investment bankers, attorneys, accountants and officers not toother advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and shall not authorize other advisors or knowingly permit any of its other Representatives torepresentatives, collectively, “Representatives”) shall, directly or indirectly:
(i) Solicit, initiate, solicit or knowingly encourage, or induce encourage any inquiries or the making, submission or announcement making of any proposal, proposal or offer or indication of interest that constitutes, or would could reasonably be expected to lead to, any Acquisition ProposalProposal (as defined below);
(ii) enter intoengage in, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposalregarding, or furnish provide any non-public information or data to any Person that is seeking to make or has made an relating to, any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its SubsidiariesProposal;
(iii) agree to, approve, endorse, recommend or consummate any Acquisition Proposal;
(iv) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition merger agreement, merger acquisition agreement or similar other agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a6.2(b) entered into in the circumstances referred compliance with this Section 6.2(a) and any customary engagement, joint defense, clean team or similar agreement) relating to in Section 6.1(a)any Acquisition Proposal (an “Alternative Acquisition Agreement”); or
(ivv) terminate, amend, waive otherwise knowingly facilitate any effort or fail attempt to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person make an Acquisition Proposal (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to provided that the Company and its Subsidiaries to any Qualified Representatives may ascertain facts from the Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any making such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in about such Person and its Representatives for the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none purpose of the Company Board or any of its Subsidiaries shall have breached or violated in any material respect committee thereof informing itself about such Acquisition Proposal and the terms of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) Person that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parentit).
Appears in 1 contract
Sources: Merger Agreement (CSC Holdings LLC)
No Solicitation or Negotiation. Except as set forth The Seller immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted prior to the date of this Agreement concerning any investment in this Section 6.1the Seller. From and after the date hereof, until the Specified TimeSeller shall not, neither the Company nor shall it permit any of its Subsidiaries shallto, and the Company nor shall cause its and its Subsidiaries’ they authorize or instruct any of their respective officers, directors and officers not or employees to, and shall use their best efforts to cause any advisor retained by them, not authorize or knowingly permit any of its other Representatives to, directly or indirectly:
indirectly through another Person, (i) Solicitsolicit, initiateinitiate or knowingly encourage (including by way of furnishing information, or knowingly encouragetake any other action designed to facilitate, any Business Combination, or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any substantive discussions or negotiations regarding any Acquisition Proposal Business Combination; PROVIDED, that if, at any time prior to the Closing, the Board of Directors of the Seller (A) receives an unsolicited BONA FIDE proposal from a Proposing Party, (B) determines in its good faith judgment that providing information to the Proposing Party or any indication of interest that would participating in negotiations or discussions with the Proposing Party could reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person result in a Superior Proposal and (C) receives specific legal advice from its outside attorneys that is seeking to make or has made an Acquisition Proposal or any indication the Board of interest that would reasonably Director's of the Seller could be expected to lead to an Acquisition Proposal any information relating in violation of its fiduciary duties to the Company Seller's stockholders if it refused to consider such proposal, furnish information, engage in discussions and negotiations or any enter into a Business Combination, as the case may be, provided that the Seller is not otherwise in breach of its Subsidiariesobligations under this Section 5.05, or afford access to then the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company Seller may (AX) after giving the Purchaser 24 hours prior written notice, furnish information with respect to the Company Seller pursuant to a confidentiality agreement with such Proposing Party substantially similar to the Confidentiality Agreement between the Seller and its Subsidiaries to any Qualified Person Birks, dated April 19, 2002, (and Y) after giving the Representatives of such Qualified Person)Purchaser 24 hours prior written notice, or (B) participate or engage in discussions or and negotiations with the Proposing Party (including solicitation Z) after giving the Purchaser 72 hours prior written notice, which indicates the identity of revised Acquisition Proposals) with any Qualified Person (the Proposing Party and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none terms and conditions of the Company or any of its Subsidiaries shall have breached or violated in any material respect the terms of this Section 6.1 in connection with such Qualified PersonSuperior Proposal, (2) prior to taking any of the actions set forth in clause (A) or (B) enter into an agreement with respect to a Qualified PersonBusiness Combination with the Proposing Party, (x) subject to Section 8.03; PROVIDED, FURTHER, if the Company Board Seller receives a Superior Proposal, the Purchaser shall have determined in good faith (after consultation with outside legal counsel) that the failure right to take such action would be inconsistent with its fiduciary obligations under applicable lawsubmit an alternative offer, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect is at least equal to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)Superior Proposal.
Appears in 1 contract
No Solicitation or Negotiation. (a) The Company, its Subsidiaries and other affiliates and their respective officers, directors, representatives (including the Company Financial Advisor or any other investment banker and any attorneys and accountants) shall, and the Company shall use all reasonable efforts to cause its and its Subsidiaries' and other affiliates' respective non-officer employees with managerial responsibilities and agents to, immediately cease any discussions or negotiations with any parties with respect to any Third Party Acquisition Proposal. The Company also agrees promptly to request each person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such person by or on behalf of the Company or any Subsidiary and, if requested by Parent, to enforce such person's obligation to do so. Neither the Company nor any Subsidiary or other affiliates shall, nor shall the Company authorize or permit any of its or their respective officers, directors or representatives to, and the Company shall use all reasonable efforts to cause its and its Subsidiaries' and other affiliates' respective non-officer employees with managerial responsibilities and agents not to, directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with or provide any information to or enter into any agreement with any person or group (other than Parent and Acquisition or any designees of Parent and Acquisition) concerning any Third Party Acquisition Proposal; provided, however, that if the Company Board determines in good faith, after consultation with legal counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's stockholders under the DGCL, the 47 Company may, in response to an unsolicited written Third Party Acquisition Proposal that the Company Board determines in good faith, based on consultation with the Company Financial Advisor, is from a Third Party that is capable of consummating a Superior Proposal and only for so long as the Board of Directors so determines in good faith that its actions are reasonably likely to lead to a Superior Proposal, (i) furnish only to any Third Party pursuant to a confidentiality agreement in a form substantially similar to the Nondisclosure Agreement (A) the information with respect to the Company of the same type and scope that the Company provided to Parent prior to the date hereof and (B) any such additional information that such Third Party requests, but only if the Company is permitted, and does in fact, simultaneously furnish such additional information to Parent, and (ii) participate in discussions and negotiations regarding such Third Party Acquisition Proposal; provided, further, that nothing herein shall prevent the Company Board from taking and disclosing to the Company's stockholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender or exchange offer. The Company shall promptly (and in any event within one (1) day after the Company attains knowledge thereof) (x) notify Parent in the event the Company or any Subsidiary or other affiliates or any of their respective officers, directors, employees and agents receives any Third Party Acquisition Proposal, including the terms and conditions thereof and the identity of the party submitting such proposal, and any request for confidential information made in connection with a Third Party Acquisition Proposal, (y) provide a copy of any written agreements, proposals or other materials the Company receives from any such person or group (or its representatives), and (z) promptly, and in any event within one (1) day, advise Parent of any material modifications thereto.
(b) Except as set forth in this Section 6.14.3(b), until the Specified Time, neither the Company nor any of its Subsidiaries shall, and Board shall not make a Change in the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize Recommendation or knowingly permit any of its other Representatives to, directly approve or indirectly:
(i) Solicit, initiaterecommend, or knowingly encourage, cause or induce any inquiries or the making, submission or announcement of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to permit the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by obligation with respect to, any Third Party Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent)Proposal. Notwithstanding the foregoing or anything foregoing, if the Company Board by a majority vote determines in its good faith judgment prior to the contrary set forth Company Stockholders Meeting, after consultation with outside legal counsel, that it is required to make a Change in this Agreementthe Company Recommendation in order to comply with its fiduciary duties, the Company Board may recommend a Superior Proposal, but only (Ai) furnish information after providing written notice to Parent (a "NOTICE OF SUPERIOR PROPOSAL") advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and (ii) if Parent does not, within five (5) days of Parent's receipt of the Notice of Superior Proposal, make an offer that the Company Board by a majority vote determines in its good faith judgment (after consultation with respect the Company Financial Advisor or another financial advisor of nationally recognized reputation) to be at least as favorable to the Company and its Subsidiaries to any Qualified Person (and the Representatives of Company's stockholders as such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreementSuperior Proposal; provided, however, that no Change in the case Company Recommendation shall relieve the Company of any action taken pursuant its obligation to submit this Agreement and such transactions to its stockholders for approval, as provided in Section 4.2(b). Any disclosure that the Company Board may be compelled to make with respect to the foregoing clauses receipt of a Third Party Acquisition Proposal or otherwise in order to comply with its fiduciary duties or Rule 14d-9 or 14e-2 will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the Company Board in violation of this Section 4.3(b).
(Ac) For the purposes of this Agreement, "THIRD PARTY ACQUISITION PROPOSAL" means, other than in connection with the Merger or as otherwise specifically contemplated by this Agreement, any proposal relating to (i) any merger, consolidation, share exchange, business combination, recapitalization or other similar transaction or series of related transactions involving the Company or any Subsidiary other than the Merger in which the stockholders of the Company immediately preceding such transaction hold, directly or indirectly, less than ninety percent (90%) of the equity interests in the surviving or resulting entity of such transaction or in any parent entity immediately following such transaction; (ii) any sale, lease, exchange, transfer or other disposition (including by way of merger, consolidation or exchange), (B) in a single transaction or (C)a series of related transactions, (1) none of the assets of the Company or any Subsidiary constituting ten percent (10%) or more of the consolidated assets of the Company or accounting for ten percent (10%) or more of the consolidated revenues of the Company; (iii) any tender offer, exchange offer or similar transactions or series of related transactions made by any person involving the Company's common stock constituting ten percent (10%) or more of the Company's common stock; (iv) the acquisition by any person (other than Parent or any of its Subsidiaries shall have breached affiliates) of beneficial ownership (as determined pursuant to Rule 13d-3 of the Exchange Act) or violated the formation of any group (as defined in Section 13(d) of the Exchange Act) to acquire beneficial ownership (as determined pursuant to Rule 13d-3 of the Exchange Act) of more than ten percent (10%) of the Company's common stock or the common stock of any material respect Subsidiary of the terms Company; or (v) any other substantially similar transaction or series of related transactions that reasonably could be expected to result in the acquisition of a controlling interest in the Company. For purposes of this Agreement, a "THIRD PARTY" means a person (which includes a "person" as such term is defined in Section 6.1 in connection with 13(d)(3) of the Exchange Act) other than Parent, Acquisition or any affiliate thereof. For purposes of this Agreement, a "SUPERIOR PROPOSAL" means any bona fide Third Party Acquisition Proposal (1) to acquire, directly or indirectly, for consideration consisting solely of cash and/or publicly-traded securities (including securities that will be publicly-traded immediately upon the consummation of such Qualified PersonSuperior Proposal), eighty-five percent (85%) of the Shares then outstanding, or all or substantially all of the assets of the Company, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) that contains terms and conditions that the Company Board shall have determined by a majority vote determines in good faith (after consultation with outside the Company Financial Advisor or another financial advisor of nationally recognized reputation) to be more favorable to the Company's stockholders than the Merger, (3) that the Company Board by a majority vote determines in its good faith judgment (after consultation with the Company Financial Advisor or another financial advisor of nationally recognized reputation and its legal counsel) that to be reasonably capable of being completed (taking into account all legal, financial, regulatory and other aspects of the failure to take such action would be inconsistent with its fiduciary obligations under applicable lawproposal and the person making the proposal), (y4) the Company shall have entered into that does not contain a confidentiality agreement the terms "right of which are no less favorable first refusal" or "right of first offer" with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions counter-proposal that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) might make, and (z5) the Company shall have given the Parent written notice of the Company’s determination that such Person does not contain any "due diligence" condition and for which any financing upon which it is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)conditioned is committed.
Appears in 1 contract
Sources: Merger Agreement (Edwards J D & Co)
No Solicitation or Negotiation. Except as set forth in this Section 6.1, until the Specified Time, neither the Company nor any of its Subsidiaries shall, and the Company shall not, shall cause its Subsidiaries and its and their respective directors and officers and shall use reasonable best efforts to cause its and its Subsidiaries’ directors and officers not to, and shall not authorize or knowingly permit any of its their respective other Representatives not to, directly or indirectly:
(i) Solicitsolicit, initiate, initiate or take any action to knowingly facilitate or knowingly encourage, or induce encourage any inquiries or the makinginquiry, submission or announcement or the making of any proposal, proposal or offer or indication of interest that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) other than informing Persons of the existence of the provisions of this Section 6.1, (A) enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any Acquisition Proposal regarding, with respect to or any indication of interest that would reasonably be expected to lead to an to, any Acquisition Proposal, Proposal or (B) furnish to any Person that is seeking to make any non-public information or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iii) enter into , in any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal or any indication of interest matter that would reasonably be expected to, or for the purpose of encouraging or facilitating, any Acquisition Proposal; or
(iii) amend, fail to lead enforce or grant any waiver or release under any standstill or similar agreement with respect to an Acquisition Proposal any securities of the Company or any of its Subsidiaries, except to the extent the Company Board (other than a confidentiality agreement referred after consultation with outside counsel) determines that the failure to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a))do so could be inconsistent with its fiduciary duties under applicable law; or
(iv) terminateagree, amendpropose or resolve to take, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or take, any of its Subsidiaries and any Person the actions prohibited by clauses (other than the Parent)i) through (iii) above. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, subject to compliance with Section 6.1(c), the Company may (A) furnish non-public information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), pursuant to a confidentiality agreement not less restrictive, in the aggregate, with respect to the confidentiality obligations of the Qualified Person than the Confidentiality Agreement; provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Qualified Person, (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that in the case agreement with respect to any Company Common Stock with any Qualified Person. The Company shall be responsible for any conduct by a Representative of any action taken pursuant to the foregoing clauses (A), (B) or (C), (1) none of the Company it or any of its Subsidiaries shall have breached or violated in any material respect the terms that would constitute a breach of this Section 6.1 6.1(a) if such conduct were engaged in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of by the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent).
Appears in 1 contract
No Solicitation or Negotiation. Except as set forth in this Section 6.14, until prior to the Specified TimeExpiration Date, neither the Company Stockholder shall not, nor shall the Stockholder authorize or permit Parent or any of its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ directors and officers not to, and shall not authorize Parent's subsidiaries or knowingly permit any of its Parent's or Parent's subsidiaries' respective directors, officers, employees, affiliates, investment bankers, attorneys, accountants or other Representatives toadvisors or representatives (such subsidiaries, directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, "STOCKHOLDER REPRESENTATIVES") to directly or indirectly:
(i) Solicitsolicit, initiate, or knowingly encourage, encourage or induce any inquiries or the making, submission or announcement of any proposal, offer Acquisition Proposal;
(ii) participate in any discussions or indication of interest that constitutesnegotiations regarding, or would furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal;
(iiiii) enter into, continue or otherwise participate or engage in discussions with any discussions or negotiations regarding person with respect to any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal, or furnish to any Person that is seeking to make or has made an Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal any information relating to the Company or any of its Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries;
(iiiiv) approve, endorse or recommend any Acquisition Proposal; or
(v) enter into any letter of intent, memorandum of understandingintent or similar document or any contract, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by commitment contemplating or otherwise relating to any Acquisition Proposal or any indication of interest that would reasonably be expected to lead to an Acquisition Proposal Transaction (other than a confidentiality agreement referred to in Section 6.1(a) entered into as defined in the circumstances referred to in Section 6.1(aPurchase Agreement)); or
(iv) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than the Parent). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Company may (A) furnish information with respect to the Company and its Subsidiaries to any Qualified Person (and the Representatives of such Qualified Person), or (B) participate or engage in discussions or negotiations (including solicitation of revised Acquisition Proposals) with any Qualified Person (and the Representatives of such Qualified Person) regarding any such Acquisition Proposal or (C) amend, or grant a waiver or release under, any standstill or similar agreement; provided, however, that Stockholder may, solely in the case Stockholder's capacity as a Representative (as such term is defined in the Purchase Agreement) of any action taken pursuant to the foregoing clauses (A)Parent, (Btake such actions as may be permitted under Section 6.2(a) or (C), (1) none of the Company Purchase Agreement, but only if the conditions set forth in Section 6.2(a) for such actions have been satisfied. The Stockholder agrees that any violation of the restrictions set forth in this Section 4 by any Stockholder Representative or any affiliate of its Subsidiaries the Stockholder or any Stockholder Representative, whether or not such Person is purporting to act on behalf of the Stockholder, shall have breached or violated in any material respect constitute a breach by the terms Stockholder of this Section 6.1 in connection with such Qualified Person, (2) prior to taking any of the actions set forth in clause (A) or (B) with respect to a Qualified Person, (x) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations under applicable law, (y) the Company shall have entered into a confidentiality agreement the terms of which are no less favorable with respect to the Company than the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or its Representatives from providing any information to the Parent to which the Parent would be entitled under any provision of this Agreement) and (z) the Company shall have given the Parent written notice of the Company’s determination that such Person is a Qualified Person and (3) contemporaneously with furnishing any information to such Person, the Company furnishes such information to the Parent (to the extent such information has not been previously furnished or made available by the Company to the Parent)4.
Appears in 1 contract